Falcon Carriche v. Ashcroft

Opinion by Judge McKEOWN; Partial concurrence and partial dissent by Judge T.G. NELSON.

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 Car-riche (“the Carriehes”), who now appeal the Immigration and Naturalization Service’s (“INS”) 1 denial of their request for cancellation of removal. The Carriehes argue that they met the statutory requirements for cancellation of removal, including the requirement that a qualifying United States citizen or lawfully admitted alien relative would suffer “exceptional and extremely unusual hardship” if the Carriehes were removed. 8 U.S.C. § 1229b(b)(l)(A)-(D)(2002). Specifically, they believe that their youngest…

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 no.t violate due process. In the interest of brevity and to focus my discussion on the major difference between my reasoning and that…