Narendra Kumar Rina Wati Sharma Kumar Shekhar Kaushik Kumar v. Alberto R. Gonzales, Attorney General

439 F.3d 520 Narendra KUMAR; Rina Wati Sharma Kumar; Shekhar Kaushik Kumar, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent. No. 03-70200. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 15, 2005. Filed February 15, 2006. Robert L. Lewis and Courtney McDermid, Law Office of Robert L. Lewis, Oakland, CA, for Petitioners Narendra, Rina, and Shekhar Kumar. Donald A. Couvillon, Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent Alberto R. Gonzales, Attorney General. On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. Aeq-ojm-jka, Akr-btm-opb, Aow-uyn-qff. Before: SILVERMAN, WARDLAW, and CLIFTON, Circuit Judges. SILVERMAN, Circuit Judge: 1 8 C.F.R. § 1003.1 (e)(4)(ii) prescribes the exact language that the BIA must use when it issues a "streamlined affirmance", i.e., affirms an immigration judge's decision without opinion. In this case, the BIA employed the prescribed language but also added a footnote disavowing the IJ's adverse credibility finding. We hold today that although the footnote violated the BIA's regulations, its inclusion was nothing more than harmless…

8 C.F.R. § 1003.1 (e)(4)(ii) prescribes the exact language that the BIA must use when it issues a “streamlined affirmance”, i.e., affirms an immigration judge’s decision without opinion. In this case, the BIA employed the prescribed language but also added a footnote disavowing the IJ’s adverse credibility finding. We hold today that although the footnote violated the BIA’s regulations, its inclusion was nothing more than harmless surplusage and caused no prejudice. We therefore assume the Kumars are credible and review the IJ’s decision directly. Doing so, we hold that substantial evidence supports the IJ’s decision that the petitioners did not establish past persecution or a likelihood of future persecution.

FACTS AND PROCEEDINGS BELOW

Narendra Kumar is an ethnic Indian and a nátive and citizen of Fiji. His wife, Rina Kumar, and their son, Shekhar Ku-mar, are also natives and citizens of Fiji. On November 10, 1994, the Kumars entered the United States on visitor-for-pleasure visas that permitted them to stay in the United States until May 1995. The Kumars failed to leave the United States by the specified date. The INS issued a Notice to Appear charging the Kumars with…

Dissenting:

I respectfully dissent. Our precedent precludes the majority from treating this petition as we would have had the BIA affirmed without opinion. The BIA’s error in failing to comply with its own regulations is not harmless and did cause prejudice. The most egregious prejudice is that when the BIA disregarded its regulations, choosing instead -to dispose of this petition through its summary affirmance procedures, Kumar was denied the .full review at the agency level to which he is entitled. This error should be remedied by a remand to the BIA for a determination whether, taking Kumar’s testimony as true, the Kumars established past persecution. Instead, the majority continues down the BIA’s misguided path by again denying Kumar the full review to which he is entitled.

The majority disregards governing case law that dictates the procedure we must follow when reviewing a BIA decision affirming the IJ without opinion. Where the BIA affirms the IJ without opinion, the panel is to review the IJ decision as the final agency decision. Singh v. Gonzales, 412 F.3d 1117 , 1121 n. 6 (9th Cir.2005); see also Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). The…