Dorrett Angela Rowe v. U.S. Attorney General

Case: 13-11493 Date Filed: 11/18/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11493
Non-Argument Calendar
________________________
Agency No. A097-386-670
DORRETT ANGELLA ROWE,
a.k.a. Dorrett Angella Brown,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 18, 2013)
Before CARNES, Chief Judge, PRYOR and JORDAN, Circuit Judges.
PER CURIAM:
Case: 13-11493 Date Filed: 11/18/2013 Page: 2 of 5
Dorrett Rowe, a native and citizen of Jamaica, seeks review of the Board of
Immigration Appeals’ order affirming without opinion the Immigration Judge’s
denial of her application for a waiver of inadmissibility under 8 U.S.C. § 1182(h).
Rowe contends that the BIA deprived her of her due process rights by issuing a
form order that incorrectly identified the type of relief she had sought, making it
impossible to determine whether the BIA properly followed its own regulations.
As an initial matter, we are obligated to review our subject matter
jurisdiction over Rowe’s petition for review. Gonzalez-Oropeza v. U.S. Att’y
Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We generally lack jurisdiction to
review any claim by “an alien who is removable by reason of having committed a
criminal offense” covered in 8 U.S.C. § 1182(a)(2), which was the conceded basis
for Rowe’s removability. 8 U.S.C. § 1252(a)(2)(C). We also lack jurisdiction to
review any claim by an alien regarding the granting of relief under 8 U.S.C.
§ 1182(h), which is the statutory basis for the waiver of inadmissibility that Rowe
sought. See 8 U.S.C. § 1252(a)(2)(B)(i). Rowe’s contention that the BIA’s
summary affirmance violated her due process rights, however, is a constitutional
claim, which we retain jurisdiction to consider. See 8 U.S.C. § 1252(a)(2)(D).
We review de novo constitutional challenges. Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341 (11th Cir. 2003). When the BIA issues a summary
affirmance of an IJ’s opinion under 8 C.F.R. § 1003.1(e)(4), we review the IJ’s
2
Case: 13-11493 Date Filed: 11/18/2013 Page: 3 of 5
opinion as the final agency decision. See Mendoza v. U.S. Att’y Gen., 327 F.3d
1283, 1284 n.1 (11th Cir. 2003); see also Alim v. Gonzales, 446 F.3d 1239, 1254
(11th Cir. 2006).
To ensure due process, the BIA is required to follow its own regulations
when exercising its discretion and issuing a decision. See United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260, 267-68, 74 S. Ct. 499, 503-04 (1954). We
have rejected a due process challenge to the BIA’s one-judge affirmance-without-
opinion procedure. See Lonyem, 352 F.3d at 1342 (recognizing that the Supreme
Court’s directive that absent constitutional constraints, “administrative agencies
should be free to fashion their own rules of procedure and to pursue methods of
inquiry capable of permitting them to discharge their multitudinous duties.”)
(quotation marks omitted).
Regulations provide that a single BIA member may affirm an IJ’s decision
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) [t]he 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) [t]he factual and legal issues raised on appeal are not so
substantial that the case warrants issuance of a written opinion in the
case.
3
Case: 13-11493 Date Filed: 11/18/2013 Page: 4 of 5
8 C.F.R. § 1003.1(e)(4)(i). We have recognized that “under the INS regulations,
no entitlement to a full opinion by the BIA exists,” and the issuance of a one-
sentence order is not “evidence that the BIA member did not review the facts of
[the petitioner’s] case.” Mendoza, 327 F.3d at 1289.
Rowe’s due process rights were not violated just because the BIA issued a
form order affirming the IJ’s decision without opinion. See id. at 1288–89. In the
caption of the case the BIA did misidentify the form of relief that had been applied
for as “asylum,” but nothing in the record indicates that the BIA entirely failed to
review Rowe’s appeal or deviated from the regulatory requirements in determining
whether the appeal met the criteria for the summary affirmance procedure. See id.
at 1289. The BIA’s order explicitly stated that the IJ’s decision was the final
agency decision, and the IJ’s detailed 20-page opinion showed that he carefully
considered Rowe’s application for a § 212(h) waiver. Nothing in the record
persuades us that the BIA actually believed it was considering the denial of an
asylum application instead of a § 212(h) waiver of inadmissibility.
Additionally, Rowe makes no argument that her case did not fit the
regulatory requirements for the affirmance-without-opinion procedure. The IJ’s
decision recounted Rowe’s and her husband’s testimony in detail and considered
letters that Rowe had submitted to the court. In accordance with precedent, the IJ
balanced the adverse factors evidencing Rowe’s undesirability as a permanent
4
Case: 13-11493 Date Filed: 11/18/2013 Page: 5 of 5
resident with the social and humane considerations presented on her behalf in order
to determine whether a grant of relief in the exercise of discretion would be in the
best interest of the United States. See In re Mendez-Moralez, 21 I. & N. Dec. 296,
299–300 (BIA 1996).
After discussing in detail the evidence presented, the IJ concluded that the
adverse factors outweighed the positive ones. His decision states that he denied
Rowe’s application because she failed to show extreme hardship to her qualifying
relatives and she did not warrant relief as a matter of discretion. Those conclusions
involved the application of statutes and existing BIA precedent and did not involve
any novel factual situation, making summary affirmance appropriate under BIA
regulations. See 8 C.F.R. § 1003.1(e)(4)(i)(A). Furthermore, in Rowe’s appeal to
the BIA, she merely challenged the IJ’s factual determination that she had not
shown extreme hardship, as well as the IJ’s discretionary denial. For those
reasons, the factual and legal issues raised on appeal were not so substantial that
the case warranted issuance of a written opinion. See id. § 1003.1(e)(4)(i)(B).
PETITION DENIED.
5