Svitlana Denko v. Immigration and Naturalization Service

*The Honorable Karen Caldwell, United States District Judge for the
Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0432P (6th Cir.)
File Name: 03a0432p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SVITLANA DENKO,
Petitioner,
v.
IMMIGRATION AND
NATURALIZATION SERVICE,
Respondent.
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No. 02-3746
On Appeal from the Board of Immigration Appeals.
No. A76 853 968.
Argued: July 29, 2003
Decided and Filed: December 8, 2003
Before: DAUGHTREY and MOORE, Circuit Judges;
CALDWELL, District Judge.*
_________________
COUNSEL
ARGUED: David W. Leopold, Cleveland, Ohio, for
Petitioner. Greg D. Mack, UNITED STATES
2 Denko v. INS No. 02-3746
DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: David W. Leopold, Cleveland,
Ohio, for Petitioner. Greg D. Mack, Emily A. Radford,
UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. Nadine K. Wettstein,
AMERICAN IMMIGRATION LAW FOUNDATION,
Washington, D.C., for Amicus Curiae.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Petitioner
Svitlana Denko (“Denko”) appeals the decision of the Board
of Immigration Appeals (“BIA” or “Board”) to affirm without
opinion the Immigration Judge’s (“IJ”) order of removal
against Denko and its decision to deny Denko’s motion to
rescind the in absentia order of removal. Denko makes two
arguments on appeal. First, Denko argues that it was an abuse
of discretion for the IJ not to reopen removal proceedings
when Denko introduced evidence that her failure to attend her
second master-calendar hearing resulted from her attorney’s
ineffective assistance of counsel and not from any decision on
Denko’s part to abandon her request for asylum. Second,
Denko argues that the regulation permitting the Board
summarily to affirm without opinion the IJ’s decision,
8 C.F.R. § 1003.1(a)(7), violates established administrative
law because it is inconsistent with other provisions of the
Immigration and Nationality Act (“INA”) and violates the
Due Process Clause of the United States Constitution because
it fails to produce a separate BIA decision for the court of
appeals to review. We AFFIRM the judgment of the IJ and
uphold 8 C.F.R. § 1003.1(a)(7)’s summary-affirmance-
without-opinion rule as both constitutional and consistent
with administrative-law precedent.

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No. 02-3746 Denko v. INS 3
1Responde nt suggests that Denko did no t apply for asylum until on
or about March 27, 1998.
I. BACKGROUND
Denko came to this country as a lawful nonimmigrant
visitor on April 25, 1993, from her native homeland in
Ukraine. Her authorization permitted her to stay for no longer
than six months. Denko remained in this country well past
her six-month authorization, and it was not until March 3,
1998,1 nearly five years after Denko first entered, that she
filed an affirmative request for asylum based on religious
persecution. Denko is Jewish and claims that, while living in
Ukraine, she was persecuted by local Ukrainian nationalists.
Denko states that she attempted to secure protection from
local government agencies in Ukraine but that none would
assist her. She cites as specific examples of persecution, the
following: large fines were fraudulently imposed on her
business by anti-Semitic local officials, she was harassed and
received threats of violence from local police, and she was
victimized and beaten by members of the Ukrainian Self
Defense, a military unit of the Ukrainian National Army.
After Denko’s request for asylum, the INS served Denko on
January 27, 1999, with a notice to appear (“NTA”) to show
cause as to why she did not leave the United States on or
before her six-month permission expired. The NTA ordered
Denko to appear before the IJ on October 29, 1999, and,
according to the INS, included a warning which stated: “If
you fail to attend the hearing at the time and place designated
in this notice, or any date and time later directed by the
Immigration Court, a removal order may be made by the
immigration judge in your absence, and you may be arrested
and detained by the INS.” Appellee’s Br. at 5.
At this October initial hearing, Denko was represented by
her attorney, Nicoleta Wojnar (“Wojnar”). Denko admitted
to the factual allegations against her and that she was
4 Denko v. INS No. 02-3746
2Denko’s brief misquotes this letter in a significant way: she omits
the key phrase “if you so desire.” Appellant’s Br. at 4. Omission of this
critical phrase distorts the meaning of the letter.
removable pursuant to the INA. During this hearing, the IJ
advised Denko of the consequences of her failure to appear at
the scheduled second master-calendar hearing set for April 7,
2000. In addition, the order issued on October 29 contained
a written warning that Denko must appear on April 7, 2000:
Failure to appear at your hearing except for exceptional
circumstances may result in one or more of the following
actions: (1) You may be taken into custody by the
Immigration and Naturalization Service and held for
further action[,] OR (2) Your hearing may be held in
your absence under section 240(b)(5) of the Immigration
and Nationality Act. An order of removal will be entered
against you if the Immigration and Naturalization Service
established by clear, unequivocal and convincing
evidence that a) you or your attorney has been provided
this notice and b) you are removable.
Joint Appendix (“J.A.”) at 32 (Not. of Hr’g in Removal
Proceedings). Another reminder came almost four months
before the second master-calendar hearing, when Denko
received a letter from Wojnar stating:
If you would like we could request a Motion to the
Judge so you do not have to be present on April 07,
2000, in which case I will be there representing you . . . .
Please let our office know if this is something you
would like to consider and although we have the right to
request it from the Judge, the Judge does not necessarily
have to grant it. However, for your convenience we will
attempt to do so if you so desire.
J.A. at 30.2 It is the wording of this letter that forms the basis
for Denko’s assertion of ineffective assistance of counsel.

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No. 02-3746 Denko v. INS 5
3As required by In re Lozada, 19 I. & N. Dec. 637 (BIA 19 88),
Denko simultaneously filed a grievance against Wojnar with the
Cleveland Bar Association. The Ohio Disciplinary Counsel dismissed the
grievance, stating that Wojnar adequately communicated with Denko and
sought to keep her abreast of the details in her immigration case.
Denko, noting that English is not her native language,
argues that she interpreted Wojnar’s letter to mean that
Denko’s presence was not required at the master-calendar
hearing. Moreover, Denko claims that Wojnar informed her
that Wojnar would seek a motion to waive appearance. As a
result of Wojnar’s letter, Denko failed to attend her second
master-calendar hearing on April 7, 2000. Consequently, the
hearing was conducted in absentia pursuant to § 240(b)(5)(A)
of the INA. Because a waiver of Denko’s personal
appearance was never requested, the IJ ordered Denko
removed to Ukraine. The IJ concluded that no special
circumstances were present to justify Denko’s absence from
the hearing.
On June 22, 2000, after retaining new counsel, Denko
moved to reopen her removal proceedings based on
ineffective assistance of counsel.3 Denko claimed in her
accompanying affidavit that she misunderstood the mixed
signals contained in Wojnar’s letter. Additionally, Denko
argued that Wojnar never informed her of Denko’s required
presence and never sought the waiver that Wojnar agreed to
seek in the letter. As evidence of Wojnar’s ineffectiveness,
Denko pointed out that the INA requires the alien’s presence
at the master-calendar hearing except in a few special
circumstances, none of which was present in Denko’s case.
On August 3, 2000, the IJ denied Denko’s motion. The judge
reasoned that:
Apart from [Wojnar’s] letter the Respondent has not
offered any additional evidence to indicate that there was
an agreement to submit a Motion to Waive Appearance
nor has the Respondent indicated anything further in her
affidavit to support the existence of the “agreement.” A
6 Denko v. INS No. 02-3746
plain reading of the letter indicates that Respondent’s
prior counsel was merely extending an offer to file the
motion. It does not rise to the level of an agreement
without evidence to indicate that the offer was accepted.
There was no evidence of a letter, telephone call, or any
other form of communication that would indicate the
Respondent accepted the offer and had a reasonable
expectation that it would be filed.
J.A. at 22 (Decision & Or. of I.J.). Additionally, the IJ noted
that even if Wojnar agreed to file the motion and then failed
to perform, Denko had a duty to follow up because Wojnar’s
letter made clear that the IJ had discretion to grant or deny the
motion. The IJ thus held that the in absentia order of removal
was proper.
Denko timely filed a notice of appeal to the Board on
August 29, 2000. Denko argued that the IJ’s decision was an
abuse of discretion because it relied on Wojnar’s ambiguous
letter to show that Denko was aware of the consequences of
her failure to appear. According to Denko, because English
is not her native tongue and because Wojnar’s confusing letter
negated the IJ’s prior warnings, the motion to reopen should
have been granted because Denko’s failure to appear was the
result of Wojnar’s ineffectiveness as counsel. On June 5,
2002, the Board, using the newly enacted streamlining
procedures, affirmed the IJ’s order without issuing an
opinion. Denko now seeks review in this court, where she
challenges the BIA’s affirmance of the IJ’s order of removal
and the BIA’s use of the affirmance-without-opinion
procedure.
II. ANALYSIS
A. Denial of the Motion to Rescind the In Absentia
Order of Removal
Denko asserts that the IJ abused her discretion when she
denied Denko’s motion to reopen the order of removal.

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No. 02-3746 Denko v. INS 7
Denko argued in that motion, and argues here on appeal, that
Wojnar’s assistance was ineffective because Wojnar failed to
make clear Denko’s responsibility for appearing at the second
hearing on April 7, 2000. In Denko’s estimation, the IJ
abused her discretion when she failed to give adequate weight
to Denko’s affidavit and supporting evidence that Denko was
misinformed and would have reacted differently had she been
given the proper information.
The denial of a motion to reopen or reconsider a removal
order is reviewed for an abuse of discretion. INS v. Doherty,
502 U.S. 314, 324 (1992). An abuse of discretion can be
shown when the IJ or Board offers no “rational explanation,
inexplicably depart[s] from established policies, or rest[s] on
an impermissible basis such as invidious discrimination
against a particular race or group.” Balani v. INS, 669 F.2d
1157, 1161 (6th Cir. 1982). When the BIA adopts the
reasoning of the IJ, we review the IJ’s decision to determine
whether the BIA abused its discretion. Kegode v. Ashcroft,
No. 01-3865, 2003 WL 1949609, at *2 (6th Cir. April 22,
2003) (unpublished). When the BIA issues an order pursuant
to 8 C.F.R. § 1003.1(a)(7), affirming the result of the IJ’s
decision but not necessarily adopting the IJ’s reasoning, the
only “rational explanation” is that of the IJ; thus here we
review the IJ’s decision for an abuse of discretion, as is
discussed more fully in Part II.B. infra.
An in absentia order issued pursuant to § 240(b)(5) of the
INA can be rescinded if the alien can show that she failed to
appear because: (1) she was in custody and her failure to
appear was not her fault; (2) she never received notice of the
proceedings; or (3) she had other exceptional circumstances.
8 C.F.R. § 1003.23(b)(4)(iii). See also 8 U.S.C.
§ 1229a(b)(5)(C). In Denko’s case, because she was not in
custody and most certainly received multiple forms of notice,
the order can be rescinded only if the motion to reopen shows
that there were exceptional circumstances causing her failure
to appear. 8 U.S.C. § 1229a(b)(5)(C)(i). Section 1229a(e)(1)
describes exceptional circumstances as matters “beyond the
8 Denko v. INS No. 02-3746
control of the alien,” including “serious illness of the alien or
serious illness or death of the spouse, child, or parent of the
alien, but not including less compelling circumstances.”
8 U.S.C. § 1229a(e)(1). An IJ considers the totality of the
circumstances when making a determination that exceptional
circumstances exist. See In re J-P-, 22 I. & N. Dec. 33 (BIA
1998); see also H.R. Conf. Rep. No. 101-955, at 119, 132
(1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6797 (noting
that “the conferees expect that in determining whether an
alien’s failure to appear was justifiable the Attorney General
will look at the totality of the circumstances to determine
whether the alien could not reasonably have been expected to
appear”). Thus, the question that we must address is whether
it was an abuse of discretion for the IJ to determine that
Denko’s claims of ineffective assistance of counsel were
insufficient to constitute an exceptional circumstance.
Because “[a] deportation proceeding is a purely civil
action,” INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984),
an ineffective assistance of counsel claim is reviewed under
the Due Process Clause of the Fifth Amendment rather than
under the Sixth Amendment. “Fifth Amendment guarantees
of due process extend to aliens in deportation proceedings,
entitling them to a full and fair hearing.” Huicochea-Gomez
v. INS, 237 F.3d 696, 699 (6th Cir. 2001). Ineffective
assistance of counsel in a deportation proceeding will rise to
the level of a due-process violation under the Fifth
Amendment “only if the proceeding was so fundamentally
unfair that the alien was prevented from reasonably
presenting his case.” Ramirez-Durazo v. INS, 794 F.2d 491,
499-500 (9th Cir. 1986) (quotation omitted); see also
Taniguchi v. Schultz, 303 F.3d 950, 958 (9th Cir. 2002) (“To
show ineffective assistance of counsel, a party must
demonstrate that the actions of his/her attorney resulted in
prejudice to the party. A party must prove prejudice by
alleging facts that permit the court to infer that competent
counsel would have acted otherwise.” (citations omitted)).
The alien will succeed if he meets his burden of showing
more than “mere[] ineffective assistance of counsel, but

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No. 02-3746 Denko v. INS 9
assistance which is so ineffective as to have impinged upon
the fundamental fairness of the hearing in violation of the
fifth amendment due process clause.” Ramirez-Durazo, 794
F.2d at 500 (quotation omitted); see also Huicochea-Gomez,
237 F.3d at 699 (“The alien carries the burden of establishing
that ineffective assistance of counsel prejudiced him or denied
him fundamental fairness in order to prove that he has
suffered a denial of due process.”).
The IJ determined that Denko did not receive ineffective
assistance of counsel because Wojnar’s letter could not be
interpreted to form an agreement that Wojnar would request
a waiver of Denko’s appearance. At best, Wojnar’s letter to
Denko could be interpreted as extending an offer to file a
waiver motion. According to the IJ, Denko offered no other
evidence of an agreement between herself and Wojnar.
Moreover, the IJ noted that even assuming that the letter
could be interpreted to constitute an agreement, the letter
clearly stated that the IJ had discretion to grant or refuse any
request, and thus Denko should have followed up with
Wojnar to determine the status of her required attendance at
the hearing. The IJ noted that at the initial scheduling
hearing, Denko was warned of the consequences of her failure
to appear at any future scheduling hearing both verbally and
in writing.
The IJ’s determination that Wojnar’s actions were
insufficient to constitute an exceptional circumstance
explaining Denko’s absence, and thus did not violate Denko’s
due-process rights, was not an abuse of discretion. The IJ
provided a “rational explanation” for her conclusions that
Denko had sufficient notice of the consequences for failure to
attend her hearing and that the allegations against Wojnar
were insufficient to establish ineffective assistance of counsel.
Balani, 669 F.2d at 1161. In addition, Denko was not entitled
to relief on her alleged ineffective-assistance-of-counsel claim
because she failed to show how her liberty interest was
violated. Huicochea-Gomez, 237 F.3d at 699. Denko is
unable to show the necessary “prejudice” or “fundamental
10 Denko v. INS No. 02-3746
unfairness” because she cannot establish that “but for
[Wojnar’s] legal advice, [she] would have been entitled to
continue residing in the United States.” Id. at 699-700
(noting that “[t]he failure to be granted discretionary relief
does not amount to a deprivation of a liberty interest”). In
fact, Denko merely asserts that if she had not relied on
Wojnar’s allegedly confusing letter, she would have appeared
at her scheduled hearing and an order in abstentia would not
have been entered against her. While this may very well be
accurate, this is not equivalent to a showing that if Denko
attended the hearing she would have been granted the asylum
she sought. The lack of fundamental unfairness becomes
even more clear when we consider that Denko neither
contests the illegal nature of her presence in the U.S. nor her
deportability. In addition, Denko failed to allege any facts
that tend to show that a competent lawyer would have
behaved differently than Wojnar. See Taniguchi, 303 F.3d at
958 (noting that prejudice can be established through facts
tending to show that a competent lawyer would have acted
differently).
Denko’s suggestion that because her affidavit states that she
was confused by Wojnar’s letter the IJ was obligated to find
that Denko suffered ineffective assistance of counsel is not
compelling. Wojnar’s letter reiterated that Denko’s hearing
was scheduled for April 7, 2000, and provided Denko an
opportunity to seek to avoid her required attendance at the
hearing. However, the language used in the letter clearly
indicated that a motion to waive appearance could be filed at
Denko’s request, and Denko presented no evidence of any
such request made to Wojnar. Although Denko argues that
her language barrier prohibited her from understanding the
precise language in the letter, she makes no argument that she
did not understand the IJ’s verbal and written warnings at the
initial hearing. Moreover, it was Denko’s responsibility to
understand the contents of a letter which, under a plain
reading, only can be interpreted as an offer to file a motion
with the immigration court. Because Denko failed to heed the
prior warnings regarding attendance and neglected to confirm

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No. 02-3746 Denko v. INS 11
4Section 10 03.1 (a)(7) states, in relevant p art:
The Chairman may designate, from time-to-time, permanent
Board Members who are authorized, acting alone, to affirm
decisions of Immigration Judges and the Service without
opinion. . . . 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 o r federal court precedent and does
her own understanding of Wojnar’s letter, we cannot conclude
that Denko suffered fundamental unfairness.
In sum, while Denko has shown that her failure to appear
at her hearing precipitated the in absentia order against her,
Denko has failed to meet her burden to show fundamental
unfairness or prejudice arising from Wojnar’s conduct. See
Huicochea-Gomez, 237 F.3d at 699; Ramirez-Durazo, 794
F.2d at 499-500. Because Denko failed to establish an
exceptional circumstance through a showing of ineffective
assistance of counsel, the IJ did not abuse her discretion in
denying Denko’s motion to rescind the in absentia order of
removal, and the BIA did not abuse its discretion in affirming
the IJ’s conclusions.
B. Summary-Affirmance-Without-Opinion Procedure
On appeal to the Board, Denko challenged the IJ’s denial of
her motion to rescind the in absentia order of removal based
on Denko’s failure to establish exceptional circumstances.
The Board, using the summary-affirmance-without-opinion
procedure (also referred to as the streamlining procedure),
agreed with the IJ’s result. Now on appeal, Denko challenges
the streamlining procedure’s compliance with the
requirements of due process and established administrative-
law precedent. Denko makes two broad arguments for
striking down 8 C.F.R. § 1003.1(a)(7).4 First, Denko asserts
12 Denko v. INS No. 02-3746
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 -Memb er review is
not warranted.
. . .
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 the decision o f the Imm igration Judge or the Service
were harmless or nonm aterial.
8 C.F.R. § 100 3.1(a)(7).
that § 1003.1(a)(7) violates congressional intent embodied in
the INA, because Congress intended to enact greater
procedural protections in administrative hearings for aliens.
According to Denko, the administrative-law scheme was
designed so that aliens would have two de novo reviews of
their claims within the administrative system, one with the IJ
and another with the BIA. In Denko’s estimation,
§ 1003.1(a)(7)’s license to members of the Board to issue
summary affirmances without opinions renders de novo
review by the BIA impossible. Denko also asserts that
§ 1003.1(a)(7) contradicts other INA provisions which permit
appeals only from final orders. Denko argues that because the
BIA did not independently render a decision, there is no final
agency order for this court to review.
Second, Denko asserts a Due Process Clause violation in
that the regulation allows the BIA to issue a summary
affirmance without also issuing a separate opinion.
According to Denko, because the BIA does not issue its own
opinion, Denko has a diminished opportunity to receive a
“full and fair judicial review” of the final agency order.
Appellant’s Br. at 7. Denko argues that the Supreme Court
has noted that in order for a court to review an agency’s
action, the action must be clearly stated because “[i]t will not
do for a court to be compelled to guess at the theory

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No. 02-3746 Denko v. INS 13
5This argument is also the heart of the Amicus Curiae’s (hereinafter
“American Immigration Law Foundation”) brief. Both Denko and the
American Immigration Law Foundation agree that the failure of the Board
to issue an opinion makes it impossible for a reviewing court to determine
whether Denko received any pro cess as required by the Due Process
Clause.
A summary affirmance does not indicate which of the[]
alternatives [in § 1003.1(a)(7)] was applied to the case. It is
equally impossible to determine how the criteria were analyzed:
what precedent was considered; why the facts were found not to
be novel; what factual and legal questions were considered; and
the standard for determining whether questions raised on appeal
were “so insubstantial” that three-Member review is not
warranted.
Amicus Br. at 13.
underlying the agency’s action; nor can a court be expected to
chisel that which must be precise from what the agency has
left vague and indecisive.” SEC v. Chenery Corp., 332 U.S.
194, 196-97 (1947). Denko cites a Ninth Circuit case for the
proposition that where the Board fails to offer a reasoned
explanation, the reviewing court must set aside the Board’s
decision. See Tukhowinich v. INS, 64 F.3d 460, 464 (9th Cir.
1995). The main problem with the summary affirmance
process, according to Denko, is that the basis for the Board’s
affirmance is concealed from our review by the explicit
command of the regulation. Denko asserts that this
concealment makes the summary-affirmance-without-opinion
procedure violate due process.5
“It is well established that the Fifth Amendment entitles
aliens to due process of law in deportation proceedings.”
Reno v. Flores, 507 U.S. 292, 306 (1993). As an initial
matter, aliens who have entered the United States, both
lawfully and unlawfully, cannot be “expelled” without the
government following established procedures consistent with
the requirements of due process. Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206, 212 (1953). We review de
novo claims of due-process violations in deportation
proceedings. Huicochea-Gomez, 237 F.3d at 699. When the
14 Denko v. INS No. 02-3746
6As noted by the American Immigration Law Found ation, the most
recent revisions to the regulation s mandate single-member review as the
standard procedure for appeals. Now a three-memb er panel on appeal is
appro priate only when the BIA needs to establish precedent, the BIA
needs to settle differences am ong IJs, the ca se is of national importance,
the IJ’s decision is not in co nform ity with the law, the IJ makes a clearly
erroneous factual determination, or the Board nee ds to reverse the IJ’s
decision. 8 C.F.R. § 1003.1(e)(6).
Board adopts the decision of the IJ in lieu of issuing its own
opinion, we review the IJ’s decision as the final agency
decision. Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995).
At the time Denko appealed to the Board, the Board’s
general policy was to sit in three-member panels to review IJ
decisions on appeal.6 Under § 1003.1(a)(7), adopted by the
Department of Justice (“DOJ”) in 1999, a single Board
member is authorized to issue a decision affirming an IJ’s
decision without stating the basis for such affirmance. This
affirmance implies that the IJ decided the case correctly, any
errors committed by the IJ were immaterial or harmless, and
either the issue is squarely controlled by precedent and does
not involve a novel factual issue or the factual and legal issues
raised on appeal are too insubstantial to warrant a three-
member review. 8 C.F.R. § 1003.1(a)(7). If an appeal from
a decision of the IJ meets the regulation’s criteria, the Board
issues an order containing the following statement: “The
Board affirms, without opinion, the result of the decision
below. The decision below is, therefore, the final agency
determination.” Id. at § 1003.1(a)(7)(iii). If an appeal does
not meet the criteria contained in § 1003.1(a)(7), a three-
member panel of the BIA must review the petition. Id. at
§ 1003.1(a)(7)(iv).
Section 1003.1(a)(7) specifically indicates that a summary
affirmance “does not necessarily imply approval of all of the
reasoning of the [affirmed] decision.” Id. at
§ 1003.1(a)(7)(iii). In the comments to the proposed rule, the

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No. 02-3746 Denko v. INS 15
728,000 appeals in 1998 was a dramatic increase from the 3,000
app eals handled by the BIA in 1984 . In 2002, the number of appeals to
the BIA reached 34,00 0. Carriche v. Ash croft, 335 F.3d 100 9, 10 12 (9th
Cir. 2003) (citing Executive Office for Immigration Review, Statistical
Y e a r B o o k : 2 0 0 2 , a t 4 9 , f i g . 2 3 , a v a i l a b l e a t
http://www.usdoj.gov/eoir/statspub/fy02syb.pdf).
DOJ identified the impetus behind permitting a summary
affirmance by a single Board Member:
To operate effectively in an environment where over
28,000 appeals and motions are filed yearly, the Board
must have discretion over the methods by which it
handles its cases. The process of screening, assigning,
tracking, drafting, revising, and circulating cases is
extremely time consuming. Even in routine cases in
which all Panel Members agree that the result reached
below was correct, disagreements concerning the
rationale or style of a draft decision can require
significant time to resolve. The Department has
determined that the Board’s resources are better spent on
cases where there is a reasonable possibility of reversible
error in the result reached below.
Executive Office for Immigration Review; Board of
Immigration Appeals: Streamlining, 64 Fed. Reg. 56135,
56137 (Oct. 18, 1999) (hereinafter “Streamlining”).7 To
remedy the problems resulting from the dramatic increase in
appeals, the Attorney General sought to implement a new
streamlined appellate review system because “in a significant
number of appeals and motions filed with the Board, a single
appellate adjudicator can reliably determine that the result
reached by the adjudicator below is correct and should not be
changed on appeal.” Id. at 56135. By expressly prohibiting
the single Board member from including his or her own
explanation or reasons within the order, the regulation further
alleviates the burden on the Board.
16 Denko v. INS No. 02-3746
8In Carriche, the Ninth Circuit noted that alien petitioners “have
unde rstandable concerns about the streamlining process” including “the
lack of transparency in the process, the increasing frequency in which the
process is invoked, the speed with which appeals are decided, and a belief
that the BIA may be abdicating its statutorily-ma ndated role of appellate
review.” Carriche, 335 F.3d at 1013.
In response to Denko’s first argument8 — that
§ 1003.1(a)(7) is inconsistent with administrative law — we
note that the cases she cites stand for the proposition that the
BIA has the power to conduct reviews de novo, not that it is
required to do so. See Abdulai v. Ashcroft, 239 F.3d 542,
548-49 (3d Cir. 2001) (“Because an alien facing removal may
appeal to the BIA as of right, and because the BIA has the
power to conduct a de novo review of IJ decisions, there is no
‘final order’ until the BIA acts.”); Castillo v. INS, 951 F.2d
1117, 1120-21 (9th Cir. 1991) (“The BIA has the power to
conduct a de novo review of the record, to make its own
findings, and to determine independently the sufficiency of
the evidence.”). While deliberate action from the BIA may be
necessary, Denko’s suggestion that a summary affirmance
without opinion is not a final order is directly contradicted by
the terms of the regulation which indicate that the IJ’s opinion
becomes the final agency determination subject to review.
8 C.F.R. § 1003.1(a)(7)(iii) (“The Board affirms, without
opinion, the results of the decision below. The decision
below is, therefore, the final agency determination.”).
Courts have consistently allowed the IJ’s decision to
become the final agency determination subject to review
when the Board has adopted the IJ’s findings or has deferred
to the IJ’s decision. See Guentchev v. INS, 77 F.3d 1036,
1038 (7th Cir. 1996) (“To adopt someone else’s reasoned
explanation is to give reasons.”); Abdulai, 239 F.3d at 549
n.2; Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996). The Third
Circuit in Abdulai noted that there are occasions where “as a
matter of logic” the courts of appeals are reviewing
effectively the IJs’ decisions, such as when the BIA affirms
on the basis of the IJ’s opinion. Abdulai, 239 F.3d at 549 n.2.

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No. 02-3746 Denko v. INS 17
Moreover, Tukhowinich expressly states that the BIA has the
authority to rely on an IJ’s opinion that provides the required
reasoning. See Tukhowinich, 64 F.3d at 463. All of these
decisions, however, require that the BIA give the IJ’s findings
“individualized consideration.” See, e.g., Chen, 87 F.3d at 8.
When the BIA does not perform its duty to “review the record
and assess the IJ’s conclusions,” the BIA abuses its own
discretion. Tukhowinich, 64 F.3d at 463. Thus, we must
address Denko’s argument that the summary affirmance
procedure enables BIA members to give less than full
consideration to the IJ decisions they review. The First
Circuit previously has addressed this argument and concluded
that a challenge to the summary affirmance procedure cannot
stand when the only evidence that the summary affirmance
procedure causes the BIA to disregard its review
responsibilities is the nature of the procedure itself combined
with statistics indicating that thorough review would be
difficult. See Albathani v. INS, 318 F.3d 365, 378-79 (1st Cir.
2003). We agree that a petitioner must show more. Here,
Denko has provided no evidence that the Board failed to give
Denko’s case proper review. See id. at 379 (“We are not
willing, however, in the absence of [] evidence [of systemic
violation by the BIA of its regulations] to infer . . . that the
required review is not taking place.”); see also Mendoza v.
U.S. Att’y Gen., 327 F.3d 1283, 1289 (11th Cir. 2003) (“That
a one-sentence order was entered is no evidence that the BIA
member did not review the facts of [petitioner’s] case.”). We
will not assume such a complete break-down in the system in
the absence of tangible evidence to support such a conclusion.
Moreover, Denko’s argument that the summary affirmance
without opinion permitted by § 1003.1(a)(7) violates the
mandate that agencies must set forth reasons for their
decisions also fails because the IJ’s opinion becomes the
reasoned explanation needed for review. Albathani, 318 F.3d
at 377 (noting that Chenery only requires the relevant agency,
here the INS, to give reasons for its decisions, which may
issue from either the BIA or an IJ). While Denko has a viable
argument that the BIA’s affirmance-without-opinion
18 Denko v. INS No. 02-3746
9The American Immigration Law Found ation points out that the
February 2002 proposals by the Attorney General included reducing the
Board size from twenty-three to eleven mem bers. A micus Br. at 4; see
also Lisa Getter & Jonathan Peterson, Speed ier Rate of Deportation
Rulings Assailed, Los A ngeles Tim es, Jan. 5, 2003, at 1. This seem ingly
contradictory proposal intends to reduce the B oard’s bac klog and the
amount of time sp ent on each case while limiting the number of persons
authorized to review rulings from the immigration judges. Spe edier Rate
of Deportation Rulings Assailed, supra. The article notes that two Bo ard
members each signed more than fifty cases in one da y, which equates to
“a decision nearly every 10 minutes if [one] worked a nine-hour day
without a break.” Id.
procedure is distinguishable from an express adoption of the
IJ’s opinion and rationale, it also is true that a summary
affirmance can be issued only when “the Board Member
determines that the result reached in the decision under
review was correct.” 8 C.F.R. § 1003.1(a)(7). Thus, the BIA
member agrees with the result reached by the IJ, and then also
determines that any errors in the IJ’s decision are harmless or
nonmaterial and that the issue raised is controlled by
precedent and is not a novel issue or that the legal and factual
issues raised are insubstantial. By necessity, then, the BIA
member must give the case his or her full consideration and
assess the IJ’s decision before the BIA member can determine
that summary affirmance without opinion is the proper
procedure.9 So while Denko’s case is not directly on point
with those cases where the BIA affirms on the basis of the
IJ’s opinion, the cases nonetheless are similar in that both
require agreement with the end-result as determined by the IJ
and both decline to require the Board to issue its own opinion
using different words to reach the same end-result. See
Guentchev, 77 F.3d at 1038.
In response to Denko’s due-process argument, the INS
points out that although the regulations permit appeals to the
Board, such review is not constitutionally compelled. The
INS relies for support on the Seventh Circuit’s opinion in
Guentchev, which noted that, “[t]he Constitution does not
entitle aliens to administrative appeals. . . . [Thus, t]he

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No. 02-3746 Denko v. INS 19
Attorney General could dispense with the Board and delegate
[his] powers to the immigration judges, or could give the
Board discretion to choose which cases to review.” Id. at
1037-38 (holding in a case decided before streamlining was
adopted that “the Board fulfills its duty by summarily
affirming an immigration judge’s opinion”); see also
Albathani, 318 F.3d at 376 (“An alien has no constitutional
right to any administrative appeal at all.”). Accordingly, the
Seventh Circuit has held that a reasoned decision by an
administrative law judge and review by a court of appeals is
sufficient to satisfy the requirements of due process.
Guentchev, 77 F.3d at 1038. As have many circuits before us,
we now join the recent trend of our sister circuits by
concluding that the BIA’s streamlining procedures do not
themselves alone violate an alien’s rights to due process.
Carriche, 335 F.3d at 1012 (Ninth Circuit); Georgis v.
Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003) (“Since we
review directly the decision of the IJ when a case comes to us
from the BIA pursuant to § 1003.1(a)(7), our ability to
conduct a full and fair appraisal of the petitioner’s case is not
compromised, and the petitioner’s due process rights are not
violated.”); Mendoza, 327 F.3d at 1289 (Eleventh Circuit);
Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003);
Albathani, 318 F.3d at 376-79 (First Circuit).
Likewise, it is not “a due process violation for the BIA to
affirm the IJ’s decision without issuing an opinion.”
Carriche, 335 F.3d at 1014. Even if the BIA would view the
factual and legal issues differently from the immigration
judge, the summary-affirmance-without-opinion rule renders
the IJ’s decision the final agency order, and we review that
decision. Thus, Denko receives the “full and fair” review that
she is entitled to receive. Huicochea-Gomez, 237 F.3d at 699;
see Georgis v. Ashcroft, 328 F.3d at 967. Moreover, “[i]n
functional terms, if the BIA does not independently state a
correct ground for affirmance in a case in which the reasoning
proffered by the IJ is faulty, the BIA risks reversal on appeal.”
Albathani, 318 F.3d at 378; see also Tuhin v. Ashcroft, No.
02-2661, 2003 WL 1342995, at *2 (7th Cir. Feb. 11, 2003)
20 Denko v. INS No. 02-3746
10Mo reover, the review process offered under § 1003.1(a)(7)
com ports with the requirements of d ue process as defined in Mathews v.
Eldridge, 424 U .S. 319 (1976). “The fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a
meaningful manner.” Id. at 333 (quotation omitted). The Court identified
three factors to consider when determining whether administrative
procedures compo rt with due process:
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the pro bab le value, if
any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
add itional or substitute procedural req uirement would entail.
Id. at 335.
Evaluating the Mathews factors in the present case, we believe that
it is clear that Denko has a substantial interest in having her in ab sentia
order of removal rescinded. Denko, however, has not shown how the
streamlining procedures increase the risk that she will be deprived
erroneously of her interest in remaining in the United States. See
gen erally Carriche, 335 F.3d at 1015 (“[T ] he alleged risks of erroneous
(unpublished order) (“The BIA’s summary affirmance of a
flawed decision by an IJ, however, may lead us to conclude
that the BIA’s decision is insufficient.”). Thus, we are not
forced to guess at the rationale of the BIA, but instead we
evaluate the IJ’s explanation as that of the Board; the Board
cannot rely on an unarticulated basis for its determination.
See Fed. Power Comm’n v. Texaco, Inc., 417 U.S. 380, 397
(1974)(“An agency’s order must be upheld, if at all, on the
same basis articulated in the order by the agency itself.”). See
generally Albathani, 318 F.3d at 377 (noting that “[t]he
summary affirmance scheme does create . . . problems [for
review], but they do not render the scheme a violation of due
process or render judicial review impossible”); see also
Carriche, 335 F.3d at 1014 (“[T]he streamlining procedures
do not compromise our ability to review the INS’s decision,
to the extent we have jurisdiction to do so, because we can
review the IJ’s decision directly.”). Thus, Denko’s due
process rights are not violated simply because the BIA did not
issue a reasoned explanation.10

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No. 02-3746 Denko v. INS 21
deprivation are mitigated through the regulatory structure itself.
Petitioners receive a reasoned decision from the IJ and have the option to
seek reconsideration fro m the B IA. . . . [I]n cases where the courts of
appeal have jurisdiction, petitioners are also entitled to an additional level
of review.”). It is not at all clear that requiring more elaborate review by
the BIA would secure Denko’s interest in not being deported.
The INS has a strong interest in its procedures for accurate, efficient,
and economical adjudication of immigration matters. The DOJ enacted
this streamlining procedure in response to statistics showing that between
1984 and 1999, appeals and motions to the Board increased more than
nine-fold. Streamlining, 64 Fed. Reg. at 56136. Other objectives of the
DOJ in enacting this procedure included promo ting uniformity in the IJ
decisions, deciding cases in a timely fashion, assuring the correct
disposition of cases, and reducing the BIA ’s backlog. Id. The Supreme
Court has indicated its approval of agencies fashioning their own
app ropriate procedures: “‘administrative agencies and administrators will
be familiar with the industries which they regulate and will be in a better
position than federal courts or Congress itself to design procedural rules
adapted to the peculiarities of the industry and the tasks of the agency
involved.’” Vermont Yankee Nuclear Power Corp. v. Natural R es. Def.
Counc il, Inc., 435 U.S. 519, 525 (1978) (quotation omitted). Denko has
failed to show how more elaborate proceedings would better protect her
interest in rema ining in the United States, and thus has failed to overcome
the governm ent’s strong interest.
Separate from her attack on the statute’s constitutionality,
Denko also argues that use of the summary-affirmance
procedures in this case was improper because her case did not
meet the criteria for application of this procedure. Denko’s
main contention is that there are factual issues — whether
Wojnar’s letter was ambiguous, whether Denko would have
attended the hearing, whether Denko was unable to
understand the letter — that are not insubstantial and require
review by a three-member panel. In response, the INS asserts
that the Board’s decision to review Denko’s appeal using
summary-affirmance procedures is insulated from review.
Citing Heckler v. Chaney, 470 U.S. 821 (1985), the INS states
that because the Administrative Procedure Act (“APA”)
governs judicial review of agency actions, judicial review is
inappropriate when the “agency action is committed to
agency discretion by law.” Id. at 828 (quoting 5 U.S.C.
22 Denko v. INS No. 02-3746
§ 701(a)(2)). Interpreting this phrase using legislative history,
the Heckler Court determined that judicial review is
precluded “if the statute is drawn so that a court would have
no meaningful standard against which to judge the agency’s
exercise of discretion. In such a case, the statute (‘law’) can
be taken to have ‘committed’ the decisionmaking to the
agency’s judgment absolutely.” Id. at 830. The INS argues
that a Board member’s decision to streamline a case is a
decision that has been committed to the agency’s discretion
because it involves “‘a complicated balancing of a number of
factors which are peculiarly within the expertise of the
agency.’” Appellee’s Br. at 19 (quoting Heckler, 470 U.S. at
831). Specifically, the INS argues that in order for the agency
to determine that no novel or complex issues are raised it
must evaluate the Board’s caseload — a task ideally suited to
the Board, not the court.
As an initial matter, this argument for committing this
decision to the agency’s discretion is doubtful because there
are judicially manageable standards available to a reviewing
court. Streamlining procedures are used only when the result
reached by the IJ is correct, any errors are harmless or
nonmaterial, and either the issue is controlled by precedent
and does not require application to novel facts or the factual
and legal questions are insubstantial and do not warrant three-
member review. These factors straight from the regulation
itself provide the necessary guidelines for judicial review.
Moreover, 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. That determination is made using the
factors identified in § 1003.1(a)(7). Moreover, as maintained
in a Seventh Circuit opinion, for many streamlined cases “it
makes no practical difference whether the BIA properly or
improperly streamlined review of [Denko’s] case,” because
when “we review directly the decision of the IJ when a case
comes to us from the BIA pursuant to [8 C.F.R.
§ 1003.1(a)(7)], our ability to conduct a full and fair appraisal

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No. 02-3746 Denko v. INS 23
of [Denko’s] case is not compromised.” Georgis, 328 F.3d at
967 (footnote omitted).
Assuming, without deciding, that judicial review properly
is employed to assess whether the BIA correctly designated
a case for summary affirmance, Denko’s argument that the
summary-affirmance-without-opinion procedure was invoked
improperly in her case nonetheless must fail. The IJ’s
decision to deny the rescission of Denko’s in absentia order
of removal was proper because Denko failed to appear for her
scheduled hearing although she was warned on numerous
occasions that her presence was required. Moreover, because
Denko did not produce any evidence other than Wojnar’s
letter and Denko’s affidavit to establish ineffective assistance
of counsel, the factual and legal issues raised were
insubstantial. Denko clearly did not take affirmative steps to
accept Wojnar’s offer to request an attendance waiver from
the IJ, and Denko’s self-serving affidavit did not give any
indication that she would have prevailed in her removal
proceedings if only she had had competent counsel. While it
may be true that Denko misinterpreted Wojnar’s letter due to
Denko’s language barrier, the IJ’s conclusion that Denko
should have been diligent to verify with Wojnar the status of
Denko’s alleged waiver seems more than appropriate
considering the previous warnings which Denko does not
suggest she failed to comprehend. Because the facts and legal
issues of Denko’s case fit precisely within the boundaries of
§ 1003.1(a)(7), the Board properly invoked the summary-
affirmance-without-opinion procedures.
III. CONCLUSION
Based on the foregoing conclusions, we AFFIRM the
judgment of the IJ and uphold § 1003.1(a)(7)’s streamlining
procedures as constitutional and consistent with
administrative-law precedent.

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