Purveegiin v. Atty Gen USA ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-1-2006
Purveegiin v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 04-3797
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 04-3797 and 04-4712
BATSAIHAN PURVEEGIIN,
Petitioner
v.
ALBERTO R. GONZALES,*
Attorney General of the United States;
MICHAEL CHERTOFF,* Secretary of the
Department of Homeland Security;
Respondents
*Substituted pursuant to Fed. R. App. P. 43(c)
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A74 879 850)
Immigration Judge Walter A. Durling
Submitted Under Third Circuit LAR 34.1(a)
February 14, 2006
Before: SCIRICA, Chief Judge, BARRY
and FISHER, Circuit Judges.
(Filed June 1, 2006)
Joseph C. Hohenstein
Orlow & Orlow
620 Chestnut Street, Suite 656
Philadelphia, PA 19106
Attorney for Petitioner
Ethan B. Kanter
William C. Minick
Janice K. Redfern
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondents
2
OPINION OF THE COURT
FISHER, Circuit Judge.
The Board of Immigration Appeals, in a series of
decisions over the course of several years, denied numerous
requests by Batsaihan Purveegiin for withholding of removal
under the Convention Against Torture (CAT).1 Purveegiin
claimed that, if deported to his native country of Mongolia, he
would be imprisoned for outstanding student loan debts and his
criticisms of the Communist Party, and that he would be denied
essential medical treatment while detained. An immigration
judge granted Purveegiin relief from removal, but the Board,
acting through a single member, reversed.
Purveegiin now petitions for review. He asserts that the
Board erred factually in discounting his allegations, legally in
concluding that his imprisonment would not constitute torture,
and procedurally in refusing to refer the case to a three-member
panel for resolution. We agree with the last point, and will
remand to the Board for further proceedings.
1
Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (CAT), art. 3, opened
for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465
U.N.T.S. 85 (entered into force June 26, 1987).
3
I.
A.
Purveegiin was working as an artist in communist
Mongolia during the late 1980s when he came to the attention
of the prime minister. The official admired his work, and
became Purveegiin’s patron. He helped Purveegiin to obtain a
student visa and arranged for him to receive approximately
$20,000 in government funds to attend art school in New York
City. Purveegiin entered the United States in 1991 and
commenced his studies later that year.
Things did not go as planned. He quit school in 1992, for
reasons that are not clear from the record. He was diagnosed
with diabetes in 1995, and placed on insulin treatment. He was
convicted by New York authorities of petty larceny, criminal
impersonation, and sexual abuse in 1995 and 1996. The prime
minister who had been his patron was arrested and detained, and
other Mongolian officials, now in power, informed Purveegiin
that the $20,000 was a loan, not a grant, and must be repaid.
He sought support from the Mongolian consulate, but the
results were decidedly negative. The chief consular official not
only denied his request for additional funds but also threatened
that, if Purveegiin did not pay back the money, he would be
imprisoned. Purveegiin responded, perhaps unwisely, by
criticizing the Communist Party, further angering the consular
official.
4
B.
He fared no better with United States authorities. The
Immigration and Naturalization Service charged Purveegiin in
1997 as an alien subject to deportation for failure to maintain the
conditions of admission, 8 U.S.C. § 1227(a)(1)(C)(i), and for
convictions of crimes involving moral turpitude, 8 U.S.C.
§ 1227(a)(2)(A)(i), (ii). Purveegiin conceded removability, but
sought withholding of removal under the CAT.2
1.
A hearing on the application for withholding of removal
was held in October 1999. Purveegiin recounted his entry into
the United States, his failed art studies, and his conflicts with
Mongolian officials. He testified that he feared imprisonment
if returned to Mongolia and argued, relying on country reports
from the United States Department of State and Amnesty
International, that he would be denied medical care if detained.
He stressed that he required daily insulin injections and that,
without treatment, he would die in a very short time.
The immigration judge granted withholding of removal.
The judge found, based on Purveegiin’s testimony and the
2
Purveegiin had previously sought, and been denied,
asylum and withholding of removal based on allegations that he
would suffer persecution if returned to Mongolia. These claims
are not relevant to disposition of the petition for review and
need not be addressed here.
5
country reports, that Purveegiin more likely than not would be
imprisoned upon his return to Mongolia, on account of his
defaulted loan obligations and anti-communist comments, and
would be deprived of necessary medical treatment while in
detention. Moreover, the judge concluded that, because
“government officials . . . know . . . of the abysmal conditions
in the prison cells . . . and would [not] be ignorant of the severe
pain to [Purveegiin] or any other prisoners,” the pain and
suffering caused to Purveegiin would be “specifically intended”
by those officials.3
2.
The Board, acting through a single member, reversed. It
disagreed with the immigration judge’s findings that Purveegiin
would be jailed upon his return to Mongolia and would be
denied medical care. It stated, without elaboration, that “there
is no convincing evidence that [Purveegiin] will be imprisoned
or even briefly detained” if deported to Mongolia. The Board
further concluded that “it is not established that [Purveegiin]
would not be provided with medication in Mongolian prison
facilities.” It did not address the immigration judge’s finding
that any pain and suffering caused to Purveegiin in prison would
be “specifically intended” by government officials.
3
See 8 C.F.R. § 208.18(a)(5) (“In order to constitute
torture, an act must be specifically intended to inflict severe
physical or mental pain or suffering.”).
6
Purveegiin filed a petition for review in this Court in July
2003. Soon thereafter, the government filed an unopposed
motion to remand the case to the Board in light of Zubeda v.
Ashcroft, 333 F.3d 463 (3d Cir. 2003). We stated in Zubeda that
an alien may be entitled to withholding of removal based on
evidence showing that, if deported to her native country, she
would be detained indefinitely and would likely be raped in
prison. The panel recognized that detaining officials might not
have the “specific intent” to inflict pain and suffering upon her,
but determined that their knowledge of the conditions of
detention could suffice to show that they “specifically intended”
the harm that would likely occur. Id. at 473-74.4 In a summary
order, we granted the motion to remand in light of Zubeda.
3.
The Board, again acting through a single member,
reaffirmed its reversal of the decision of the immigration judge.
It admitted into the record new country reports from 2003,
4
See Zubeda, 333 F.3d at 473 (“Although the regulations
require that severe pain or suffering be ‘intentionally inflicted,’
we do not interpret this as a ‘specific intent’ requirement.
Rather, we conclude that the Convention simply excludes severe
pain or suffering that is the unintended consequence of an
intentional act.”) (internal citation omitted). But see Auguste v.
Ridge, 395 F.3d 123, 148 (3d Cir. 2005) (holding that a showing
of “specific intent” to cause severe pain and suffering is
required to establish torture and rejecting as dicta contrary
statements in Zubeda).
7
authored by the United States Department of State and Amnesty
International. These documents contained “somewhat
contradictory” accounts of prison conditions: both reported
continued problems with excessive force and torture against
prisoners and detainees but both also acknowledged that
conditions were improving. The State Department report noted
that Mongolian officials were reforming the prison system to
monitor abuses and provide better medical care to inmates, and
that hundreds of inmates with tuberculosis had received
treatment.
The Board concluded that Purveegiin had not
demonstrated, based on current country conditions, that he
would be subject to torture if deported to Mongolia. It stated
that Purveegiin’s testimony, uncorroborated by evidence of
“outstanding warrants for his arrest,” was insufficient to
establish that he would be imprisoned in Mongolia. It also
found, based on the reports of improving prison conditions, that
Purveegiin would likely receive adequate medical care even if
he were detained. Again, the Board did not address the
“specific intent” element of the torture claim.
4.
In September 2004, Purveegiin filed a timely petition for
review with this Court and a motion for reconsideration with the
Board. He criticized the Board for “fail[ing] to adequately
consider the impact of Zubeda.” He also asserted that reversal
of the immigration judge’s decision by a single member of the
Board, as opposed to a three-member panel, was improper under
agency regulations.
8
A single member of the Board denied the motion for
reconsideration. The summary order discounted Purveegiin’s
arguments relating to Zubeda, concluding that the Board had
conducted the review required by Zubeda but had determined,
as a factual matter, that Purveegiin would not be subject to
“severe pain and suffering” in Mongolia. It simply rejected,
without explanation, Purveegiin’s demand for three-member
review.
Another timely petition for review followed. We
consolidated this petition with the one filed from the order of the
Board in September 2004.5
II.
The Department of Justice has in recent years
promulgated a series of regulations aimed at decreasing the
backlog of pending immigration cases. Perhaps the most well
known of these efforts are the streamlining regulations that went
into effect in 1999. They allowed, for the first time, a single
member of the Board to affirm a decision of an immigration
judge without written opinion, if the decision was “squarely
5
Following consolidation, Purveegiin filed a motion to
supplement the record with four newspaper articles from May
and June 2005. These articles report that the Communist Party
has won control of Mongolia in recent elections and quote a
United Nations official as stating that torture still occurs in
Mongolian prisons and pre-trial detention facilities, particularly
against inmates on death row.
9
controlled” by existing precedent. See Dia v. Ashcroft, 353 F.3d
228, 235 (3d Cir. 2003) (en banc). These provisions, now
codified at 8 C.F.R. § 1003.1(e)(4), have been subject to
criticism by courts and commentators, see, e.g., Berishaj v.
Ashcroft, 378 F.3d 314, 331 (3d Cir. 2004); Evelyn H. Cruz,
Double the Injustice, Twice the Harm: The Impact of the Board
of Immigration Appeals’s Summary Affirmance Procedures, 16
Stan. L. & Pol’y Rev. 481, 505-08 (2005),6 but have been lauded
by the agency as an effective and adequate means to resolve
simple cases in an expeditious manner, see Procedural Reforms
To Improve Case Management, 67 Fed. Reg. 54,878, 54,885
(Aug. 26, 2002) (“The Department believes that the Board’s
experience with the streamlining initiative has proven that fears
of procedural failures or substantive errors being overlooked are
not well founded.”).
Other regulations, promulgated in 2002, further expanded
the authority of a single member of the Board to resolve appeals.
Id. Codified at 8 C.F.R. § 1003.1(e)(5), they provide that all
cases will be reviewed in the first instance by a single Board
member:
6
See also Dorsey & Whitney LLP, Board of Immigration
Appeals: Procedural Reforms To Improve Case Management
40-47 (July 22, 2003) (unpublished study, submitted to the
American Bar Association on Immigration Policy, Practice and
Pro Bono), available at http://www.dorsey.com/files/upload/
DorseyStudyABA_8mgPDF.pdf.
10
If the Board member to whom an appeal is
assigned determines, upon consideration of the
merits, that the decision is not appropriate for
affirmance without opinion, the Board member
shall issue a brief order affirming, modifying, or
remanding the decision under review, unless the
Board member designates the case for decision by
a three-member panel under paragraph (e)(6) of
this section . . . . A single Board member may
reverse the decision under review if such reversal
is plainly consistent with and required by
intervening Board or judicial precedent, by an
intervening Act of Congress, or by an intervening
final regulation.
Id. This provision expresses a preference in favor of single-
member adjudication for the majority of cases. See Procedural
Reforms To Improve Case Management, 67 Fed. Reg. at 54,879.
Only in certain circumstances, enumerated in paragraph
(e)(6) of 8 C.F.R. § 1003.1, do the regulations provide for
referral of a case to a three-member panel:
Cases may only be assigned for review by a
three-member panel if the case presents one of
these circumstances:
(i) The need to settle inconsistencies
among the rulings of different immigration
judges;
11
(ii) The need to establish a precedent
construing the meaning of laws, regulations, or
procedures;
(iii) The need to review a decision by an
immigration judge or the Service that is not in
conformity with the law or with applicable
precedents;
(iv) The need to resolve a case or
controversy of major national import;
(v) The need to review a clearly
erroneous factual determination by an
immigration judge; or
(vi) The need to reverse the decision of an
immigration judge or the Service, other than a
reversal under § 1003.1(e)(5).
8 C.F.R. § 1003.1(e)(6). A case should be referred to a panel
only if the legal and factual issues are in reasonable dispute or
the case is of exceptional importance. See id.; see also
Procedural Reforms To Improve Case Management, 67 Fed.
Reg. at 54,879-88.
These regulations, Purveegiin argues, required the Board
to refer his case for three-member review. There are two
questions that must be addressed in resolving this issue.
Initially, we must determine whether the decision to employ
single-member review is “committed to agency discretion,” such
12
that we lack jurisdiction to consider the matter. If it is not, then
we must address whether the Board’s invocation of the
procedure in this case was arbitrary or capricious.
A.
Under the Administrative Procedure Act, any “person
suffering legal wrong because of agency action . . . is entitled to
judicial review.” 5 U.S.C. § 702; see also id. §§ 701(b)(1), 704.
There are only two exceptions to this general rule: (1) when a
statute precludes judicial review of the action, and (2) when the
action is “committed to agency discretion by law.” Id. § 701(a).
No statute proscribes judicial review of the Board’s decision to
employ single-member review, so the only question here is
whether the matter is “committed to agency discretion.” See id.;
Smriko v. Ashcroft, 387 F.3d 279, 291-92 (3d Cir. 2004).
An action is considered to be within an agency’s absolute
discretion, and not subject to judicial review, if the relevant
statute or regulation “is drawn so that a court would have no
meaningful standard against which to judge the agency’s
[action].” Lincoln v. Vigil, 508 U.S. 182, 190-91 (1993)
(quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). Only
if the governing provisions affirmatively circumscribe the
agency’s authority, constraining its decision in a definite and
defined manner, may a court competently assess the validity of
its action. See id.; see also Smriko, 387 F.3d at 292.
A strict reading of 8 C.F.R. § 1003.1 arguably suggests
that the decision to employ single-member review is a matter
“committed to agency discretion.” Paragraph (e)(5) lists cases
13
in which an appeal “shall” be decided by a single member, and
paragraph (e)(6) lists cases in which an appeal “may” be referred
to a three-member panel. Id. Notably, neither of these
provisions states that a single member “shall not” decide a
particular case, even if he or she determines that it falls within
one of the categories of paragraph (e)(6). Nor do they state that
a single member’s decision to resolve a case without panel
review might “violate” these standards. The regulations are
phrased as permissive, allowing – but not mandating – three-
member review in certain circumstances, in the discretion of the
Board.
Nevertheless, the structure of the regulations and their
history make clear that they impose affirmative limits on the
authority of a single member to decide an appeal. The first
sentence of paragraph (e)(5) of 8 C.F.R. § 1003.1 states: “[T]he
Board member to whom an appeal is assigned . . . shall issue a
brief order affirming, modifying, or remanding the decision . . .
unless the Board member designates the case for decision by a
three-member panel under paragraph (e)(6) of this section.” Id.
§ 1003.1(e)(5) (emphasis added). By directing that a single
member “shall” resolve a case “unless” it falls within the
categories of paragraph (e)(6), the provision necessarily implies
that a single member “shall not” resolve a case if it does fall
within one of those categories. A member who determines that
a case qualifies for referral under paragraph (e)(6) should refrain
from decision and, instead, assign the matter to a three-member
panel. See id. § 1003.1(e)(5), (6).
A contrary view would render these provisions largely
superfluous. A Board member’s determination that a case
14
qualified for three-member review under paragraph (e)(6) would
have no bearing on his or her ultimate authority to resolve the
appeal. Notwithstanding the propriety of panel review, the
member could still dispose of the appeal in a summary order
and, if a motion for reconsideration is filed, could deny that
motion, again without the involvement of other Board members.
See id. § 1003.1(e)(5) (“A motion to reconsider . . . a decision
that was rendered by a single Board member may be adjudicated
by that Board member unless the case is reassigned to a
three-member panel . . . .”). Only if the regulations are viewed
as mandating referral under the circumstances enumerated in
paragraph (e)(6) may the Board and the courts monitor a
member’s compliance with the regulatory duties established by
8 C.F.R. § 1003.1(e).
The history of the regulations confirms this view. The
rule initially proposed by the agency stated in paragraph (e)(6)
that “[c]ases shall be assigned for review by a three-member
panel . . . if the case presents one of [the enumerated]
circumstances.” Procedural Reforms To Improve Case
Management, 67 Fed. Reg. 7309, 7315 (proposed Feb. 19, 2002)
(emphasis added). The mandatory language of this provision
demonstrates the agency’s understanding that individual Board
members would lack authority to decide cases that fall within
the listed categories. They would instead be required to refer
these cases for panel review.
The reason that the mandatory “shall” was dropped in the
final regulations in favor of the permissive “may only” was,
according to the agency, to avoid “judicial enforcement of
three-member panel review.” Procedural Reforms To Improve
15
Case Management, 67 Fed. Reg. at 54,888. But, despite this
semantic shift, the agency made clear in its accompanying
commentary that “[t]his change does not broaden the authority
of a single Board member to decide these cases.” Id. In other
words, a single member is still bound by the same limitations
that existed under the proposed mandatory version of the
regulations. See id. at 54,886-87. The member is still required,
even under the facially permissive final regulations, to refer
cases that fall within the categories of paragraph (e)(6) for panel
review.
That the agency did not “intend” for the courts of appeal
to review the Board’s decision to employ single-member review
is not dispositive – or even relevant – to whether the matter is
“committed to agency discretion.” Smriko, 387 F.3d at 294-95.
Rather, the availability of judicial review depends solely on the
language of the regulations and the interpretation given to them
by the agency. See id.; see also Auguste v. Ridge, 395 F.3d 123,
150 (3d Cir. 2005) (“[T]he [Board’s] interpretation and
application of its own regulations is entitled to ‘great
deference.’”) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484
(3d Cir. 2001)). When an agency’s rules circumscribe its
authority in a defined and assessable manner, the judiciary is
competent – indeed compelled under the Administrative
Procedure Act, 5 U.S.C. §§ 701, 702, 704 – to pass upon the
agency’s compliance with those provisions. Smriko, 387 F.3d
at 290-92.
Under the agency’s own interpretation of the regulations,
a Board member’s discretion to decide a case without panel
review is informed and constrained by 8 C.F.R. § 1003.1(e)(5)
16
and (e)(6). See Procedural Reforms To Improve Case
Management, 67 Fed. Reg. at 54,886-88. These provisions offer
concrete, judicially manageable standards by which a court may
determine whether single-member disposition is permissible in
a given case. Batalova v. Ashcroft, 355 F.3d 1246, 1253 (10th
Cir. 2004), cited with approval in Smriko, 387 F.3d at 292, 294
n.10.7
Further supporting judicial review is that the availability
of panel consideration offers “important procedural benefits” to
individuals involved in immigration proceedings. See Am. Farm
Lines v. Black Ball Freight Serv., 397 U.S. 532, 538-39 (1970)
(suggesting that judicial review of agency compliance with
internal rules is appropriate when the rules are “intended
primarily to confer important procedural benefits upon
individuals in the face of otherwise unfettered discretion”). The
agency acknowledged, in promulgating the single-member
review provisions, that panel review is necessary in cases
presenting difficult or important questions of fact or law to
ensure that adequate attention is given to complex issues.
Procedural Reforms To Improve Case Management, 67 Fed.
Reg. at 54,887-88; Procedural Reforms To Improve Case
Management, 67 Fed. Reg. at 7311. This practice aids not only
the agency itself, through greater assurance of adjudicative
7
See also Lincoln, 508 U.S. at 190-91 (stating that a
matter is “committed to agency discretion” if the relevant
provisions are “drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of
discretion”).
17
consistency, but also the participants in the process, through
more detailed consideration of significant cases. Procedural
Reforms To Improve Case Management, 67 Fed. Reg. at
54,887-88. Indeed, the regulations implicitly recognize this
advantage to individuals by allowing a participant to request
three-member panel review in the notice of appeal.8 These
provisions are not merely an “internal management directive,”
cf. 8 C.F.R. § 1003.1(e)(8) (establishing time limits for
adjudication of appeals), but confer on participants in agency
proceedings a substantial benefit. This benefit may be enforced
by the courts if improperly denied.
8
See 8 C.F.R. § 1003.3(b) (“An appellant who asserts that
the appeal may warrant review by a three-member panel . . . may
identify in the Notice of Appeal the specific factual or legal
basis for that contention.”); id. § 1003.3(f) (“A party to an
appeal . . . pending on August 26, 2002, may, until
September 25, 2002, or the expiration of any briefing schedule
set by the Board, whichever is later, submit a brief or statement
limited to explaining why the appeal or motion does or does not
meet the criteria for three-member review under
§ 1003.1(e)(6).”); see also Procedural Reforms To Improve
Case Management, 67 Fed. Reg. at 54,888 (“[I]n those appeals
that do raise novel or complex factual or legal issues . . . a
respondent is permitted, even encouraged, . . . to state in the
Notice of Appeal and elaborate in a brief, the reasons why the
appeal merits review by a three-member panel . . . .”). It does
not appear that Purveegiin took advantage of this opportunity.
However, the government does not argue that his inaction
results in a waiver of the issue.
18
We recently confirmed, in Smriko v. Ashcroft, 387 F.3d
279 (3d Cir. 2004), our ability to review a similar agency
practice: the Board’s invocation of the streamlining provisions
of paragraph (e)(4). Under these provisions, a single member
may affirm the decision of an immigration judge if he or she
determines that the issues are either “squarely controlled” by
existing precedent or “are not so substantial that the case
warrants the issuance of a written opinion.” 9 8 C.F.R.
9
Paragraph (e)(4) of 8 C.F.R. § 1003.1 provides, in
pertinent part, as follows:
The Board member to whom a case is assigned
shall affirm the decision of the Service or the
immigration judge, without opinion, if the Board
member determines that the result reached in the
decision under review was correct; that any errors
in the decision under review were harmless or
nonmaterial; and that
(A) The issues on appeal are
squarely controlled by existing
Board or federal court precedent
and do not involve the application
of precedent to a novel factual
situation; or
(B) The factual and legal issues
raised on appeal are not so
substantial that the case warrants
the issuance of a written opinion in
the case.
Id. § 1003.1(e)(4).
19
§ 1003.1(e)(4). Like the single-member review regulations, the
streamlining regulations impose affirmative limits on a single
member’s authority to resolve an appeal without panel
participation. See Smriko, 387 F.3d at 292. These constraints
provide judicially manageable standards by which a court may
assess the Board’s compliance with both the streamlining
provisions and the single-member review procedures. See id. at
292, 294 n.10 (citing Batalova, 355 F.3d at 1253 (upholding
judicial review of Board’s invocation of single-member
review)).
Only one court, the Court of Appeals for the Eighth
Circuit in Bropleh v. Gonzales, 428 F.3d 772 (8th Cir. 2005),
has held that it lacks jurisdiction to consider the issue. Id. at
779. This holding was based entirely, and without independent
analysis, on the prior opinion in Ngure v. Ashcroft, 367 F.3d 975
(8th Cir. 2004), in which it concluded that “the [Board’s]
decision whether to employ the [streamlining provisions] in a
particular case is committed to agency discretion and is not
subject to judicial review.” Id. at 983. We rejected Ngure in
Smriko, 387 F.3d at 294-95, and, for the same reasons, we now
reject Bropleh.
The decision to employ single-member review is not a
matter “committed to agency discretion.” The regulations
provide a “meaningful standard against which to judge the
agency’s exercise of discretion,” see Heckler, 470 U.S. at 830,
and confer “important procedural benefits” on participants, see
Am. Farm, 397 U.S. at 538-39. The agency’s invocation of
these provisions is properly subject to judicial review and will
20
be overturned if “arbitrary” or “capricious.” 5 U.S.C. §§ 702,
706(2)(A); see Smriko, 387 F.3d at 296-97.
B.
Turning to the merits, it is clear that the Board erred in
refusing to refer this case to a three-member panel. Paragraph
(e)(5) of 8 C.F.R. § 1003.1 allows a single member to issue an
order “affirming, modifying, or remanding” a decision under
review. Notably absent from this general language is permission
to “reverse” a decision of an immigration judge. Rather, the
sole enumerated circumstance in which a single member may
reverse a decision is “if such reversal is plainly consistent with
and required by intervening Board or judicial precedent, by an
intervening Act of Congress, or by an intervening final
regulation.” Id. § 1003.1(e)(5). Only when reversal is required
as a “nondiscretionary matter” under intervening law may a
single member resolve the appeal. Procedural Reforms To
Improve Case Management, 67 Fed. Reg. at 54,887.
This case does not satisfy this standard. The Board’s
reversal was based not on intervening legal precedent, but on
factual disagreements between the immigration judge and the
authoring Board member. The immigration judge found that
Purveegiin would be imprisoned and denied medical treatment
in Mongolia, constituting “severe pain and suffering.” The
Board member found to the contrary, and on that basis reversed
21
the judge’s holding that Purveegiin faced the threat of torture.10
Reversal was not “nondiscretionary” in this case. It was instead
premised on differing factual interpretations of the
administrative record.
The government asserts that reversal was “consistent with
and required by” our recent opinion in Zubeda.11 This argument
is specious. The Board’s order – and its two subsequent orders
reaffirming the same result – did not depend on the “specific
intent” of Mongolian officials, the element of torture discussed
in Zubeda. 333 F.3d at 473-74. Rather, the basis for reversal
was the Board member’s disagreement with two factual findings
of the immigration judge: (1) that Purveegiin would be
imprisoned upon return to Mongolia, and (2) that he would be
denied essential medical treatment in prison. These findings
have nothing to do with the intent of Mongolian officials, but,
instead, are relevant to whether Purveegiin would be subject to
10
See 8 C.F.R. § 208.18(a)(1) (“Torture is defined as any
act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person . . . .”).
11
The government previously asserted that reversal was
“consistent with” In re J–E–, 23 I. & N. Dec. 291 (BIA 2002),
in which the Board held that an alien’s likely imprisonment in
“inhuman prison conditions” did not constitute “torture” under
the CAT because government authorities did not have the
“specific intent” to cause harm to detainees. Id. at 300-01. This
argument was withdrawn in a subsequent letter brief to the
Court, and will not be addressed.
22
“severe pain and suffering” in Mongolia. See 8 C.F.R.
§ 208.18(a)(1). Reversal in this case was not “required by”
Zubeda and did not qualify under paragraph (e)(5) of 8 C.F.R.
§ 1003.1.12
This case, instead, falls nicely within the categories for
which three-member review is warranted under paragraph
(e)(6). These include cases that present the “need to reverse the
decision of an immigration judge . . . other than a reversal under
§ 1003.1(e)(5).” Id. § 1003.1(e)(6). As discussed previously,
reversal in this case was not “plainly . . . required by”
intervening precedent under paragraph (e)(5), but was
necessitated by the Board’s contrary findings of fact. The
regulations anticipate that these cases will be assigned to a
three-member panel, to ensure complete and thorough review of
the factual record.
The Board’s failure to refer this case for panel review
was in error, and may have affected its resolution of the factual
12
Indeed, it appears that the immigration judge in this
case correctly forecast our discussion of the “specific intent”
element in Zubeda. He held, as we would later state, that
government officials’ knowledge of dangerous prison conditions
may give rise to an inference that those officials “specifically
intended” to harm detainees. See Zubeda, 333 F.3d at 473-74.
But see Auguste, 395 F.3d at 148 (rejecting discussion in Zubeda
as dicta). Thus, if anything, Zubeda would have counseled in
favor of affirming, not reversing, the decision of the
immigration judge.
23
disputes underlying Purveegiin’s claims. Remand is necessary
to allow a panel of the Board to pass upon these issues in the
first instance.13
III.
The single-member review regulations, like the
streamlining regulations, allow the Board of Immigration
Appeals to expedite disposition of cases that do not present
substantial questions of fact or law. But these provisions are not
to be used as a wholesale substitute for panel deliberation and
decision. Resolution of disputed factual and legal issues
through summary order deprives litigants of thorough
consideration of their claims, deprives the Board of the
opportunity to develop its own precedent, and deprives the
courts of an adequate basis on which to assess the agency’s
compliance with statutory mandates.
This case presented a clear factual disagreement between
the reviewing Board member and the immigration judge. Panel
review was not only appropriate, but required. The Board’s
decision to resolve this case through single-member order was
arbitrary and capricious, warranting remand for reconsideration
by a panel.
13
Cf. Smriko, 387 F.3d at 296-97 (stating that improper
application of streamlining provisions may not warrant remand
when case may be resolved on other grounds).
24
The petition for review will be granted. This case will be
remanded to the Board of Immigration Appeals for further
proceedings consistent with this opinion. The motions to
supplement the record, to proceed pro se, and to be present at
oral argument before this Court will be denied as moot.
25