Abdul Majeed Khattak v.  JOHN ASHCROFT, Attorney General

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ABDUL MAJEED KHATTAK,
Petitioner,
v. No. 02-1475 
JOHN ASHCROFT, Attorney General,
Respondent. 
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A91-365-567)
Argued: April 2, 2003
Decided: June 13, 2003
Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and
Terry L. WOOTEN, United States District Judge for the
District of South Carolina, sitting by designation.
Petition for review denied by published opinion. Chief Judge Wilkins
wrote the opinion, in which Judge Shedd and Judge Wooten joined.
COUNSEL
ARGUED: Michael Christopher Richards, Ivan Yacub, LAW
OFFICE OF IVAN YACUB, Falls Church, Virginia, for Petitioner.
Lisa Marie Arnold, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Robert D.
McCallum, Jr., Assistant Attorney General, Michael P. Lindemann,

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Assistant Director, Office of Immigration Litigation, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
OPINION
WILKINS, Chief Judge:
Abdul Majeed Khattak petitions for review of an order of the
Board of Immigration Appeals (BIA) affirming without opinion an
immigration judge’s order denying Khattak’s applications for asylum,
withholding of deportation, and suspension of deportation. We deny
the petition for review.
I.
Khattak is a Pakistani national who fraudulently entered Canada by
using another individual’s passport. He entered the United States in
1985 by crossing the border at Buffalo, New York without inspection.
In 1988, he applied for temporary resident status under the special
agricultural worker (SAW) amnesty program, which allows certain
aliens who perform farm labor to obtain permanent residency in the
United States. See 8 U.S.C.A. § 1160(a) (West 1999 & Supp. 2003).
Khattak claimed in his application that he had performed qualifying
agricultural work as an employee of Mumraiz Ahmad from August
15, 1985, until June 6, 1986. The Immigration and Naturalization Ser-
vice (INS) initially granted Khattak’s status adjustment request on
September 27, 1988. However, on June 21, 1990, the INS notified
Khattak of its intent to terminate his temporary-resident benefits. See
8 U.S.C.A. § 1160(a)(3)(B)(i) (allowing the INS to revoke an alien’s
temporary-resident status before he obtains permanent-resident status
if the INS determines that the temporary-resident status was fraudu-
lently obtained). The notice informed Khattak that an individual
named Bahauddin Khan Khattak (Bahauddin) had pleaded guilty to
several federal crimes stemming from his submission of numerous
fraudulent legalization applications. The notice further stated that
Bahauddin had named Khattak in a sworn statement as one of the for-
eign nationals for whom he had prepared a fraudulent application.
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On July 16, 1990, Khattak responded to the INS’ notice, denying
that he had received fraudulent assistance from Bahauddin in prepar-
ing his SAW application or had even known that Bahauddin was
involved in falsifying applications. Khattak also submitted two sworn
statements from Ahmad, dated July 11, 1990, confirming that Khattak
had worked for him on the relevant dates. Despite these submissions,
the legalization office (LO) found that Khattak had obtained his
temporary-resident status through fraud and thus revoked Khattak’s
status on September 19, 1990. Khattak subsequently appealed the
revocation to the Legalization Appeals Unit (LAU), which dismissed
his appeal on February 17, 1993, concluding that the clear preponder-
ance of the evidence supported the decision of the LO.
On March 12, 1997, the INS issued an order to show cause charg-
ing that Khattak was deportable because he had been admitted to the
United States as a nonimmigrant and had remained longer than per-
mitted. Khattak conceded his deportability but sought asylum, with-
holding of deportation, and suspension of deportation. Khattak also
sought to challenge the prior revocation of his temporary-resident sta-
tus, but the immigration judge refused to accept evidence relating to
that issue, ruling that he lacked jurisdiction to review it. After review-
ing the evidence concerning the other claims, the immigration judge
found that Khattak had failed to establish entitlement to any of the
relief he sought. The BIA affirmed the immigration judge’s decision
without opinion.
II.
In affirming the immigration judge’s decision, the BIA employed
a streamlined review procedure, put into place in October 1999, that
allows a single BIA member to dispose of an appeal in summary fash-
ion upon determining
that the result reached in the decision under review was cor-
rect; that any errors in the decision under review were harm-
less 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
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(B) 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) (2003); Rules and Regulations, 64 Fed. Reg.
56,135 (Oct. 18, 1999). Khattak contends that he relied on his entitle-
ment to three-member BIA review and a full BIA opinion when he
conceded deportability in the immigration court. Because the stream-
lining procedure upset these expectations, Khattak contends that it is
impermissibly retroactive. We disagree.
A rule does not operate retroactively simply because it "upsets
expectations based in prior law." Landgraf v. USI Film Prods., 511
U.S. 244, 269 (1994). Rather, to have a retroactive effect, a statute
must "attach[ ] new legal consequences to events completed before its
enactment." INS v. St. Cyr, 533 U.S. 289, 321 (2001) (internal quota-
tion marks omitted). In determining whether a rule has a retroactive
effect, courts should be guided by "familiar considerations of fair
notice, reasonable reliance, and settled expectations." Martin v.
Hadix, 527 U.S. 343, 358 (1999) (internal quotation marks omitted).
Here, the streamlined review procedure does not attach new legal
consequences to events occurring before it was created. The new pro-
cedure does not alter the legal standards that are applied in reviewing
the merits of appellants’ claims. Rather, it affects only the body that
adjudicates the claims. Cf. Landgraf, 511 U.S. at 274 (explaining that
"[a]pplication of a new jurisdictional rule usually ‘takes away no sub-
stantive right but simply changes the tribunal that is to hear the
case’") (quoting Hallowell v. Commons, 239 U.S. 506, 508 (1916)).
Relying on Ballew v. Georgia, 435 U.S. 223 (1978), Khattak con-
tends that the streamlining procedures produce a retroactive effect
because a smaller fact-finding body "results in a greater chance of an
inaccurate result." Br. of Pet’r at 19. In Ballew, the Supreme Court
held that trial by a five-person jury was unconstitutional, relying in
part on empirical data suggesting that smaller juries do not find facts
as accurately as larger ones. See Ballew, 435 U.S. at 232-39. Khattak
suggests that the same must be true of smaller BIA panels.
Khattak offers no support for this leap in logic, however. BIA
members are professionals who adjudicate immigration cases regu-
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larly, as contrasted with jurors, who are generally untrained in the law
and for whom jury duty is an uncommon experience. Also, critically,
the only appeals adjudicated by a single BIA member under the
streamlining procedures are those that have been determined, in
essence, to be the easiest cases. We simply have no reason to con-
clude that the size of the BIA panel makes any difference whatsoever
in such appeals. Cf. id. at 237-38 (noting that increased accuracy in
fact finding is most critical in close cases).
Nor is the BIA’s issuance of a summary opinion, rather than a
detailed one, a retroactive effect. Khattak suggests that a more
detailed BIA opinion would have enabled him to "develop legal strat-
egy and determine how the Board" analyzed the applicable law. Br.
of Pet’r at 15. But Khattak already has received a full explanation of
the immigration judge’s decision, which is essentially the decision
under review. See 64 Fed. Reg. at 56,138 (stating that when the
streamlining regulations are employed, "[f]or purposes of judicial
review, . . . the Immigration Judge’s decision becomes the decision
reviewed"). Had the BIA issued a detailed opinion, it would have sim-
ply substituted one reviewable decision for another. We therefore
conclude that allowing summary opinions in clear cases is nothing
more than a procedural change that does not affect substantive rights.
See Landgraf, 511 U.S. at 275.*
*Khattak also contends that the immigration judge improperly discred-
ited his testimony concerning the genuineness of an alleged religious
conversion that was the basis of Khattak’s request for asylum. Khattak
claimed that in 1995 he converted from the Sunni Muslim faith to the
Ahmadi Muslim faith and that people practicing the latter religion face
severe persecution in Pakistan. We conclude that the immigration judge’s
credibility determination was supported by substantial evidence. See
Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989).
Khattak further argues that the immigration judge erred in ruling he
lacked jurisdiction to adjudicate Khattak’s claim that his due process
rights were violated because his temporary residency status was termi-
nated without him being given an opportunity to confront and cross-
examine Bahauddin. Khattak does not challenge the conclusion of the
immigration judge that no applicable statute or regulation authorized him
to consider whether Khattak was denied the right to due process when
his temporary status was rescinded. And, he concedes that he was enti-
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III.
In sum, for the reasons set forth above, we deny Khattak’s petition
for review.
PETITION FOR REVIEW DENIED
tled to assert his due process challenge in federal district court. See
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 491-99 (1991)
(holding that district court has jurisdiction over "general collateral chal-
lenges to unconstitutional practices and policies used by the [INS] in pro-
cessing [SAW status] applications"). He nevertheless conclusorily asserts
that denying him the right to make his due process challenge in the
immigration court was "unconstitutional." We find no basis to support
that conclusion.
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