Chong Shin Chen v. John Ashcroft, Attorney General

378 F.3d 1081 CHONG SHIN CHEN, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-73473. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 15, 2004. Filed August 10, 2004. COPYRIGHT MATERIAL OMITTED Alan Sampson, San Francisco, CA, for the petitioner. Ethan B. Kanter and Regina Byrd, United States Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before WALLACE, KOZINSKI, and THOMAS, Circuit Judges. THOMAS, Circuit Judge: 1 In this petition for review, we consider whether the summary affirmance of an Immigration Judge's ("IJ") decision by the Board of Immigration Appeals ("BIA") violated the BIA's streamlining regulations. We conclude that because the legal issue presented was not squarely controlled by existing BIA or federal court precedent, the BIA erred in summarily affirming the IJ's decision. We grant the petition for review and remand the petition to the BIA. 2 * Chong Shin Chen, a native and citizen of the People's Republic of China, entered the United States without inspection on December 15, 1989. A day later, he was taken into custody by the…

In this petition for review, we consider whether the summary affirmance of an Immigration Judge’s (“IJ”) decision by the Board of Immigration Appeals (“BIA”) violated the BIA’s streamlining regulations. We conclude that because the legal issue presented was not squarely controlled by existing BIA or federal court precedent, the BIA erred in summarily affirming the IJ’s decision: We grant the petition for review and remand the petition to the BIA.

I

Chong Shin Chen, a native and citizen of the People’s Republic of China, entered the United States without inspection on December 15, 1989. A day later, he was taken into custody by the Immigration and Naturalization Service (“INS”), served with an Order to Show Cause charging that he was deportable from the United States, and released on bond. His case was administratively closed when he did not show up for a scheduled hearing.

In August 1990, William S. Slattery, District Director of the INS, informed Chen by letter that the Attorney General had granted Chen “deferred enforced departure” status pursuant to Executive Order 12,711 until January 1, 1994. The communication also apprised Chen that: “You have the right to apply for any…

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…