dissenting:

Not content to decide the issues Chen presents in his petition for review, the majority strains his argument to bring within its cross hairs bigger game. Nowhere in his petition for review does Chen contend that the Board of Immigration Appeals (Board) failed to comply with its streamlining regulations in affirming, without opinion, the Immigration Judge’s (IJ) ruling that he was inadmissible for permanent residence under Immigration and Nationality Act (INA) section 245 (a), 8 U.S.C. § 1255 (a). Chen does challenge the Board’s streamlining decision, but he clearly limits his attack to the Board’s determination (or, as he alleges, lack thereof) regarding INA section 245 (i), 8 U.S.C. § 1255 (i). Moreover, Chen’s claim is constitutional, not regulatory. The IJ had no occasion to address section 245(i) in her order, for Chen first broached the matter on appeal to the Board. For the Board to then affirm without opinion, Chen maintains, deprived him of “any explanation of the agency’s decision on the particular issue” and consequently “violate[d his] due process rights.” In contrast, Chen acknowledges that the IJ’s section 245(a) ruling now stands as the final agency decision, thereby implicitly conceding that the Board properly streamlined it.

Logically, General Ashcroft’s discussion of the Board’s streamlining decision mirrors Chen’s. The Attorney General confines his response to the constitutional issue, as he rightly understands Chen to assert “that the Board’s decision ... violates due process because the Board failed to address his § 245(i) argument, an argu *1089 ment that was not raised before the immigration judge.”

Given that the parties have neither raised nor briefed the issue of the Board’s regulatory compliance, our practice dictates that we not consider it here. See, e.g., Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir.2003) (“In general, we will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief.” (internal quotation marks, brackets, and citations omitted)). We adhere to this approach for sound prudential reasons. See, e.g., Indep. Towers of Wash. v. Washington, 350 F.3d 925 , 929 (9th Cir.2003) (“Our adversarial system relies on the advocates to inform the discussion and raise the issues to the court.”); Abovian v. INS, 219 F.3d 972, 981 (9th Cir.2000) (Wallace, J., dissenting) (“There is a risk that the court, lacking the analysis ordinarily provided by adversarial parties, will reach the wrong conclusion on the merits and create poor precedent .... ”). The majority nonetheless ignores these principles and proceeds, unguided by the parties, to issue a precedenWsetting decision on a significant issue. Since I disagree with the course the majority charts, I dissent.

I.

We have yet to adjudicate a petition for review based solely on the merits of a Board decision to streamline — and for good reason. See, e.g., Tokatly v. Ashcroft, 371 F.3d 613 , 615 n. 1 (9th Cir.2004) (declining to reach the petitioner’s claim “that the [Board] violated its own regulations in deciding to streamline this appeal”); Vukmirovic v. Ashcroft, 362 F.3d 1247, 1253 (9th Cir.2004) (declining to decide a similar claim). When affirming without opinion, the Board’s order must follow a standard script: “ ‘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(a)(7).’” 8 C.F.R. § 1003.1 (a)(7)(iii). Any “further explanation or reasoning” is prohibited. Id. Such compelled administrative succinctness leaves little of substance to review. Cf. Ngure v. Ashcroft, 367 F.3d 975, 985 (8th Cir.2004) (concluding that the Board’s streamlining determinations “are not amenable to judicial consideration”).

Even if the Board’s streamlining decision were more transparent, our review of it will almost always prove “unnecessary and duplicative.” Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.2003). We have recognized that

Id. at 853-54 (internal citation omitted). As a practical matter, then, “[t]he decision to streamline becomes indistinguishable from the merits. Were we to find an error, we would either grant relief if permitted or simply remand to the [Board] to proceed in a manner consistent with our decision.” Id. at 855 . In short, “where we can reach the merits of the decision by the IJ or the [Board], an additional review of the streamlining decision itself would be superfluous.” Id.

*1090 It is true that Falcon Carriche left open the possibility that “a truly novel case could arise for which a decision to streamline could be found erroneous as a matter of law under the third prong of the [Board] regulations.” Id. at 854 . One day, a petitioner no doubt will stake claim to the “truly novel case.” At that moment we will have an argument on point from the petitioner as well as the benefit of the Attorney General’s defense. But Chen’s petition presents no such claim. Moreover, as will be shown hereafter, the Board’s decision to streamline the IJ’s section 245(a) ruling is certainly not “erroneous as a matter of law under the third prong of the [Board] regulations.”

A

Falcon Carriche does not clearly specify which clause constitutes “the third prong of the [Board] regulations,” but it does cite to 8 C.F.R. § 1003.1 (a)(7)(ii)(A), which is one (i.e., (A)) of two (i.e., (A) and (B)) subclauses of subsection (a)(7)(ii)’s third general criterion. The majority assumes that “the third prong” includes both subclauses. This interpretation seems logical, as the subclauses are phrased in the disjunctive; an error under subclause (A) would not doom the Board’s decision to streamline if the Board correctly applied (B). At least for arguments sake, then, I will follow the majority’s lead and consider both subclauses.

Before doing so, however, I flag here an issue overlooked by the majority: the governing standard of review. Not only does the majority fail to analyze and decide which standard to adopt, but the majority also neglects to state explicitly which standard it is applying. Although standards of review are critical to our function as an appellate court, particularly when we have the decision of an administrative agency before us, I do not endeavor to answer the question conclusively; regardless of the applicable standard, the Board’s decision should be upheld. I mention only that some deferential standard clearly is in order here since the Board’s interpretation of its own regulations “is entitled to great judicial deference.” Zurich Am. Ins. Co. v. Whittier Props., Inc., 356 F.3d 1132, 1137 (9th Cir.2004); see also Auer v. Robbins, 519 U.S. 452, 461 , 117 S.Ct. 905 , 137 L.Ed.2d 79 (1997) (stating that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation” (internal quotation marks and citations omitted)).

B.

I am willing to concur with the majority’s empirical observation that there is scant case law dealing with the relationship between section 245(a) and deferred enforced departure, and that consequently “[t]here is no [Board] or federal court precedent that squarely controls the precise legal issue presented by Chen.” See 8 C.F.R. § 1003.1 (a)(7)(ii)(A). However, contrary to what the majority at times suggests, this far from resolves the matter at hand. The more critical subclause in Chen’s case — and I suspect the typical petitioner’s — is subclause (B). Under this provision, the Board may affirm without opinion if “the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted.” Id. § 1003.1(a)(7)(ii)(B). According to the majority, whether a question qualifies as “so insubstantial that three-Member review is not warranted” depends on how many individuals it impacts. Thus, the questions raised in this case are not insubstantial because they “affect[ ] every People’s Republic of China national who entered the United States illegally but was then granted deferred enforced departure status by Executive Order 12,711, a sweep *1091 ing Order that applied to every People’s Republic of China national who was in the United States at the time.” The majority’s interpretation fails to give full meaning to the regulation’s text. The number of petitions an issue touches might be relevant, but it certainly is not determinative; at least two other factors are at play.

First, the regulations authorize the Board to take account of institutional concerns — the full inquiry is whether the issue is “so insubstantial that three-Member review is not warranted.” Id. (emphasis added). The recent Eighth Circuit decision in Ngure v. Ashcroft, 367 F.3d 975 (8th Cir.2004), is instructive in this regard. The court analyzed the streamlining regulations’ other formulation of the criterion in subclause (B), one phrasing the standard as whether “[t]he factual and legal issues raised on appeal are 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)(B). The Eighth Circuit explained that

Ngure, 367 F.3d at 986 . In other words, in determining whether “the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted,” 8 C.F.R. § 1003.1 (a)(7)(ii)(B), we must be mindful that intraagency considerations may be driving the Board’s decision, lest we interfere too quickly in its internal affairs.

Second, a factual or legal question would be “insubstantial” if its resolution is a foregone conclusion. That is, whereas sub-clause (A) considers whether an issue “is squarely controlled by existing Board or federal court precedent,” id. § 1003.1(a)(7)(ii)(A), subclause (B) operates as a catchall for issues “squarely controlled” by other binding legal authority, for example, a legal question whose answer is evident on the face of a statute. This example governs here: since it is clear that the relevant statutory sections precluded the Immigration and Naturalization Service (INS) and IJ from adjusting Chen’s status, the “factual and legal questions raised on [his] appeal [were] so insubstantial that three-Member review [was] not warranted.” Id. § 1003.1(a)(7)(ii)(B).

C.

INA section 245(a) provides that “[t]he status of an alien who was inspected and admitted or paroled into the United States” and who meets certain other conditions “may be adjusted by the Attorney General.” 8 U.S.C. § 1255 (a) (emphasis added); see also 8 C.F.R. § 1245.1 (b)(3) (listing “[a]ny alien who was not admitted or paroled following inspection by an immigration officer” among those “ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the [INA]”). The Chinese Student Protection Act of 1992 (CSPA) dispensed with many of section 1255’s requirements, see CSPA, Pub.L. No. 102-404, § 2 , 106 Stat. 1969 , 1969-71, but did not affect subsection (a)’s prerequisite that the alien be “inspected and admitted or paroled,” see Tang v. Reno, 77 F.3d 1194 , *1092 1197 (9th Cir.1996) (“Simply stated, Congress did not waive the requirement that a Chinese national attempting to take advantage of the CSPA must have entered the country legally through inspection and admittance or parole.”)- Because Chen was never “inspected and admitted or paroled,” he is ineligible, pursuant to the statutes’ plain meaning, to adjust his status. Nevertheless, Chen maintains' — and the majority holds plausible — that being granted deferred departure and being released on bond was the “functional equivalent” of being paroled because parole is the only way his “temporary harbor-age is sanctioned.” Numerous defects plague this reasoning.

For starters, the majority ignores the scope of Executive Order 12,711. See Exec. Order No. 12,711, 55 Fed.Reg. 13,-897 (Apr. 11, 1990). Although the Executive Order provided for the “maintenance of lawful status for purposes of adjustment of status ... for such [Chinese] nationals who were in lawful status at any time on or after June 5, 1989,” id. § 3(b), 55 Fed. Reg. at 13,897 (emphasis added), it did not grant any type of lawful status to those Chinese nationals who did not possess it already. See Qi-Zhuo v. Meissner, 70 F.3d 136, 140 (D.C.Cir.1995) (observing that the Executive Order “calls for the ‘maintenance of lawful status ... ’ only for ‘such- [Chinese] nationals who were in lawful status at any time on or after June 5, 1989’ ” (emphasis added)). Instead, the Order instructed the Attorney General “to take any steps necessary to defer until January 1, 1994, the enforced departure of all nationals of the People’s Republic of China ... who were in the United States on or after June 5, 1989.” Exec. Order No. 12,711 § 1, 55 Fed.Reg. at 13,897. In practical terms, the Executive Order simply directed the INS to stay its hand in enforcing the departures of certain illegal Chinese nationals. Given its limited resources, the INS must set enforcement priorities: though it is aware that millions of unknown aliens are present in the United States unlawfully, it cannot possibly pursue them all simultaneously and with equal vigor. Executive Order 12,711 recognized this reality and formalized a temporary arrangement whereby other matters would take precedence over locating and deporting Chinese nationals.

In that sense, it is an overstatement to assert that the Executive Order “sanctioned” Chen’s presence in the United States. In fact, he never attained any level of lawful status. The INS’s letter informing Chen that it was deferring enforcement of his departure clearly states that “this program does not give you a lawful status in the United States and you may not be eligible for adjustment of status or certain other benefits under the [INA].” Being released on bond likewise had no effect on Chen’s status. See 8 C.F.R. § 242.2 (c), (d) (1989). Moreover, the record indicates that the INS denied Chen’s application for advanced parole.

Lastly, it is not true “that the source of the President’s power to issue Executive Order 12,711 could only derive from the power to grant parole.” Executive Order 12,711 tapped all of the Attorney General’s and Secretary of State’s “authority, including that under the Immigration and Nationality Act (8 U.S.C. 1101-1557).” Exec. Order No. 12,711, 55 Fed.Reg. at 13,897. The parole provision, 8 U.S.C. § 1182 (d)(5), is located within that statutory range, but so are a number of other relevant sections. For example, at the time of the Executive Order’s promulgation, 8 U.S.C. § 1103 charged “[t]he Attorney General ... with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103 (a) (1989). One of the enforcement *1093 powers would be to deport Chen for being an alien who “entered the United States without inspection,” id. § 1251(a)(2) (1989), which would occur “upon the order of the Attorney General,” id. § 1251(a) (1989). By conditioning deportation on “the order of the Attorney General,” section 1251 permits the Attorney General to exercise some discretion over the commencement of proceedings to order Chen deported-discretion the Attorney General could use to set enforcement priorities.

Citing Matter of O, 16 I. & N. Dec. 344 (1977), the majority opines that “Chen’s argument has support in[Board] precedent” (although apparently not enough to be “squarely controlled by existing Board precedent,” 8 C.F.R. § 1003.1 (a)(7)(ii)(A)). The majority’s reliance on Matter of 0 is misplaced. In that ease, the Board determined that the status of 126 aliens evacuated from Vietnam by United States officials was identical to that of the nearly 130,000 other evacuees who were granted advanced parole. Although the Board acknowledged being “unaware of .. any authority making it lawful for the Government to bring these aliens to the United States other than the parole authority granted the Attorney General under section 212(d)(5) of the Act,” Matter of O, 16 I. & N. Dec. at 348 , the Board’s decision did not rest on this proposition. Rather, the Board relied on “several points which, taken together, persuade[d them] that these [126] applicants were paroled” just like the other 130,000. Id. at 351 . Notably absent from this list of “several points” is the Board’s earlier speculation that the parole statute might provide the exclusive authority for bringing the 126 evacuees to the United States. See id.

D.

In releasing Chen and deferring enforcement of his deportation, the INS in no way granted him the “functional equivalent” of parole which would enable him to seek adjustment of status under INA section 245(a). We can and should deny his petition for review as to this argument on the merits. If, though, we must conduct the majority’s “superfluous” “additional review of the streamlining decision itself,” Falcon Carriche, 350 F.3d at 855, the disposition stays the same. Since relevant provisions of law clearly foreclose the relief Chen seeks, “the factual and legal questions raised on appeal [were] so insubstantial that three-Member review [was] not warranted.” 8 C.F.R. § 1003.1 (a)(7)(ii)(B).

II.

Chen’s remaining contentions are without merit. His argument that he is eligible to adjust his status under INA section 245(i), 8 U.S.C. § 1255 (i), fails in light of Chan v. Reno, 113 F.3d 1068 (9th Cir. 1997). Falcon Carriche disposes of his due process challenge of the Board’s streamlining decision. See Falcon Carriche, 350 F.3d at 851 (holding that it is not “a due process violation for the [Board] to affirm the IJ’s decision without issuing an opinion”).

III.

The majority thinks “the better course in this case is to remand to the agency for its consideration of the issue [of Chen’s parole] in the first instance.” Either the majority overlooks that the Board already has considered the issue, or the majority refuses to take the Board’s word for it. In streamlining Chen’s appeal, the Board chose to adopt the IJ’s decision rejecting Chen’s argument that he secured the “functional equivalent” of parole. See 8 C.F.R. § 1003.1 (a)(7)(iii) (“An order affirming without opinion ... approves the result reached in the decision below; it *1094 does not imply approval of all of the reasoning of that decision, but does signify the Board’s conclusion that any error in the decision of the [IJ] or the [INS] were harmless or nonmaterial.”). Since the IJ’s analysis is correct, there is no reason to review the Board’s subsequent decision to affirm without opinion, let alone disturb it. I accordingly dissent.