Gerardo Bibiano Falcon Carriche Theresa v. De Falcon Carriche and Christina Pamela Falcon Bibiano v. John Ashcroft, Attorney General

ORDER AND AMENDED OPINION

ORDER

The Majority Opinion filed July 14, 2003, slip op. 9435, and appearing at 335 F.3d 1009 , is amended as follows:

With these amendments, the panel has voted to deny the petition for panel re *796 hearing. Judges Silverman and McKeown vote to deny the petition for rehearing en banc and Judge T.G.

Nelson so recommends. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are denied.

OPINION

In this case of first impression in the Ninth Circuit, we are presented with constitutional and regulatory challenges to the Board of Immigration Appeals’ (“BIA”) recently-adopted streamlining procedures. Under those procedures, a single member of the BIA may affirm the decision of the Immigration Judge (“IJ”), thus bypassing the traditional three-judge review. In such a case, the Board affirms without opinion and the IJ’s opinion becomes the final agency action.

The streamlining process was invoked in the case of Gerardo Bibiano Falcon Car-riche and Theresa Vianna De Falcon…

concurring in part and dissenting in part:

With respect and with the recognition that “[i]t is bad for the mind to continually be part of unanimity,” 1 I must part ways with the majority’s analysis. I disagree with the majority’s conclusion that we lack jurisdiction to review the BIA’s decision to streamline a case. With one exception, the plain language of the streamlining criteria demonstrates that the criteria are non-discretionary. Thus, under clear precedent, we retain jurisdiction to review the streamlining decision. Not surprisingly, no other circuit has concluded that it lacks jurisdiction to review the decision to streamline.

Because I conclude that the BIA appropriately streamlined this case, I too would deny the petition. Thus, I concur in the end result the majority reaches. The critical difference between my analysis and that of the majority is that I would deny the entire petition on the merits rather than deny it in part and dismiss it in part for lack of jurisdiction.

I agree with the conclusion that the streamlining procedures do not violate due process. In the interest of brevity and to focus my discussion on the major difference between my reasoning and that…

350 F.3d 845 Gerardo Bibiano FALCON CARRICHE; Theresa V. De Falcon Carriche; and Christina Pamela Falcon Bibiano, Petitioners, v. John ASHCROFT, Attorney General, Respondent. No. 02-71143. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 6, 2003. Filed July 14, 2003. Amended November 24, 2003. COPYRIGHT MATERIAL OMITTED Susan E. Hill, Law Offices of Susan E. Hill, Los Angeles, California, for the Petitioners. Robert D. McCallum, Jr., Julia K. Doig, and Audrey B. Hemesath, United States Department of Justice, Washington, D.C., for the Respondent. Mary K. Kenney, Nadine K. Wettstein, and Beth Werlin, American Immigration Law Foundation, Washington, D.C., for amicus curiae American Immigration Law Foundation. On Petition for Review of an Order of the Board of Immigration Appeals. Before THOMAS G. NELSON, BARRY G. SILVERMAN, and M. MARGARET McKEOWN, Circuit Judges. ORDER AND AMENDED OPINION ORDER 1 The Majority Opinion filed July 14, 2003, slip op. 9435, and appearing at 335 F.3d 1009 , is amended as follows: 2 1. Change Heading III from "III. CHALLENGE TO APPLICABILITY OF STREAMLINING REGULATIONS" to "III. REGULATORY CHALLENGE" and insert at slip op. 9446…