Gutnik, Ilya P. v. Gonzales, Alberto

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3007
ILYA PETROVICH GUTNIK,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A71 164 986
____________
ARGUED SEPTEMBER 6, 2006—DECIDED NOVEMBER 29, 2006
____________
Before ROVNER, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. Ilya Petrovich Gutnik is a 26-year-
old native and citizen of Ukraine who came to live in the
United States with his parents as a legally admitted
refugee in 1993 when he was 14 years old. Twenty months
later, he adjusted his immigration status and became a
lawful permanent resident, the first of many steps on the
path to becoming a U.S. citizen. Unfortunately for Gutnik,
his path was interrupted by convictions for four violations
of Illinois law between 1999 and 2001. These matters
prompted the then-Immigration and Naturalization Service
(INS) (now the Department of Homeland Security) to
institute removal proceedings against him. When the
immigration judge (IJ), later affirmed by the Board of
2 No. 05-3007
Immigration Appeals (BIA), found Gutnik removable as
charged but granted his application for withholding of
removal, Gutnik filed this petition for review, challenging
both the application of particular removal grounds to
some of his convictions and the IJ’s conclusions as to the
unavailability of certain forms of relief from removal.
Gutnik is Jewish, and during his time in Ukraine,1 both
before and after the collapse of the former Soviet Union, he
and his family were on the receiving end of substantial
persecution for their ethnicity and religious beliefs. The
family (Gutnik, his parents, and his younger brother) fled
Ukraine and entered the United States as refugees under
the Lautenberg Amendment. See Foreign Operations,
Export Financing, and Related Programs Appropriations
Act of 1990 § 599D, Pub. L. No. 101-167, 103 Stat. 1195(1989). After the one-year waiting period under 8 U.S.C.
§ 1159(a)(1) expired, Gutnik adjusted his immigration
status and became a lawful permanent resident. Because
the adjustment of status by a refugee operates retroactively,
see id. § 1159(a)(2), Gutnik was regarded as admitted for
permanent residence as of August 27, 1993, the exact date
when he arrived in the United States. This backdating is
1
There continues to be confusion over whether to use the
article “the” in connection with “Ukraine.” In the briefs, Gutnik’s
counsel uses “the Ukraine,” while the government uses “Ukraine.”
Likewise, at joint remarks in January 2005, Vice President
Cheney used “the Ukraine,” while President Yushchenko, the
elected leader of the country, used “Ukraine.” See Press Release,
Office of the Vice President, Vice President’s Remarks with
Ukrainian President Yushchenko (Jan. 26, 2005) (Villa Decius,
Krakow, Poland). We will use Ukraine, which is not only correct
but is also preferred by Ukrainians themselves, see Associated
Press, Terminology of Nationalism, N.Y. Times, Dec. 3, 1991, at
A10, and is the grammatically consistent choice, see Andrew
Gregorovich, Ukraine or “The Ukraine”?, FORUM Ukrainian
Review No. 90, Spring/Summer 1994.
No. 05-3007 3
significant because it enables a noncitizen to seek U.S.
citizenship at least a full year earlier than would otherwise
be possible. Rather than waiting 5 years from early 1995
when he adjusted his status, Gutnik could have undertaken
the naturalization process as soon as August 23, 1998, so
long as he maintained his U.S. residency and stayed out of
trouble until that time. Ultimately, his parents and younger
brother completed the naturalization process and became
U.S. citizens.
But Gutnik had problems. Not long after those 5 years
passed, he pled guilty to possession of drug paraphernalia
in Cook County, Illinois. This started a 3-year habit of
running into trouble with the law. He was convicted of that
crime on February 4, 1999. Three other convictions fol-
lowed: on May 24, 2000, for retail theft; on March 29, 2001,
for possession of a controlled substance (.4 grams of heroin);
and on May 10, 2001, for a second retail theft. As we said,
these activities2 brought Gutnik to the attention of INS, and
in early 2002 it served him with a notice to appear for
deportation proceedings.
INS ultimately charged that Gutnik was removable on
three separate grounds: (1) the two retail theft offenses
were multiple convictions for crimes of moral turpitude
under 8 U.S.C. § 1227(a)(2)(A)(ii); (2) his 1999 conviction for
possession of drug paraphernalia and 2001 heroin posses-
sion offense each constituted crimes relating to a controlled
substance under § 1227(a)(2)(B)(i); and (3) his conviction for
heroin possession was also an aggravated felony under
§ 1227(a)(2)(A)(iii). In response, Gutnik disputed the INA’s
2
Gutnik blames all of his problems on a drug addiction which he
says he has licked, in part by a stay at the Rosecrance Rehabil-
itation Center in Rockford, Illinois. He went on, he says, to get
a GED and enroll at Harper College (Palatine, Illinois), where
he attained a 4.0 grade point average.
4 No. 05-3007
characterization for immigration purposes of his heroin and
paraphernalia offenses and applied for several deferrals
from removal: asylum, cancellation of removal, withholding
of removal, relief under the Convention Against Torture
(CAT), and a § 1159(c) waiver of inadmissability in conjunc-
tion with an adjustment of status to permanent residency.
In 2004, following a hearing, an IJ ordered Gutnik’s
permanent resident status terminated and denied his
applications for asylum, cancellation of removal, and a
waiver of inadmissability. The IJ held (1) that Gutnik’s
heroin possession conviction is an aggravated felony
under 8 U.S.C. § 1227(a)(2)(A)(iii) rendering him inelig-
ible for asylum; (2) that the conviction for possession of
drug paraphernalia constitutes a controlled substance
offense under § 1227(a)(2)(B)(i); and (3) that Gutnik was
ineligible to apply for the waiver of inadmissability avail-
able to refugees under 8 U.S.C. § 1159(c) because
his adjustment of status to a permanent resident in 1995
terminated his refugee status. At the same time, the IJ
found Gutnik’s testimony to be credible, noting that he
had suffered past persecution on the basis of his ethnicity
and religious beliefs and would be likely to do so again if he
was returned to Ukraine; he therefore granted Gutnik’s
request for withholding of removal. Having done so, the IJ
declined to address Gutnik’s application for relief under the
CAT. On appeal, the BIA issued a brief order in accordance
with the streamlining procedures of 8 C.F.R. § 1003.1(e)(5)
that adopted, affirmed, and supplemented the IJ’s decision.
So as things stand now, Gutnik is relieved, at least until
conditions improve, from being returned against his will
to Ukraine. But without a grant of asylum or a § 1159(c)
waiver of inadmissability, his is a limited victory. Withhold-
ing of removal does not prevent the government from
removing him to some other country, nor does it offer him
any avenue to regain his permanent resident status. With
this in mind, Gutnik appeals the BIA’s order affirming
the decision of the IJ. Our jurisdiction is provided by
No. 05-3007 5
8 U.S.C. § 1252(a)(2)(D) (authorizing review of constitu-
tional claims and questions of law raised in a petition for
review of removal proceedings). The IJ’s decision, as
supplemented by the BIA, serves as the basis for our
review. Niam v. Ashcroft, 354 F.3d 652, 655-56 (7th Cir.
2004).
Gutnik filed his opening brief on September 19, 2005. He
now admits that all of his Illinois crimes constitute convic-
tions under the immigration laws and that he is eligible for
removal from this country on the basis of two separate
statutory grounds: His two convictions for retail theft are
multiple crimes involving moral turpitude under
§ 1227(a)(2)(A)(ii), and his heroin possession conviction
is a controlled substance offense under § 1227(a)(2)(B)(i).
But he challenges several other conclusions of the IJ, as
affirmed by the BIA.
Gutnik first argues that his heroin possession conviction,
a felony in Illinois, is not an aggravated felony under
§ 1227(a)(2)(A)(iii) because at the federal level that crime is
punishable as a misdemeanor. At the time of Gutnik’s brief,
this circuit had yet to adopt this so-called “hypothetical
federal felony approach” for characterizing violations of
state law as aggravated felonies for the purposes of
§ 1227(a)(2)(A)(iii). But in Gonzales-Gomez v. Achim, 441
F.3d 532 (7th Cir. 2006), we did just that. The government
concedes the direct application of Gonzales-Gomez, which
removes the bar to Gutnik’s asylum claim. We must
therefore remand to the BIA for further proceedings.3
3
Gutnik will have his asylum application considered unless the
Supreme Court rejects the position taken by this circuit in
Gonzales-Gomez when it resolves Lopez v. Gonzales, 417 F.3d 934(8th Cir. 2005), petition for cert. granted, 74 U.S.L.W. 3289 (U.S.
April 3, 2006) (oral argument held Oct. 3, 2006). Should that
occur, our remand on the aggravated felony issue will be vacated
and Gutnik will be ineligible for asylum.
6 No. 05-3007
In fact, it appears that Gutnik has already demonstrated
his eligibility for asylum.4 As we have said, the IJ’s grant of
withholding of removal indicates that Gutnik established
that he is more likely than not to be persecuted upon return
to Ukraine. The standard of proof to demonstrate refugee
status, and therefore eligibility for asylum, see 8 U.S.C.
§§ 1101(a)(42)(A) & 1158(b)(1)(B)(i)—a “well-founded fear
of persecution”—is lower. INS v. Cardoza-Fonseca, 480 U.S.
421, 448-49 (1987). It remains for the government to
favorably exercise its discretion in granting asylum to
eligible refugees. Ghebremedhin v. Ashcroft, 392 F.3d 241,
244 (7th Cir. 2004).
Gutnik next asks us to review the IJ’s conclusion that his
Illinois conviction for possession of drug paraphernalia is a
violation of a law relating to a controlled substance under
8 U.S.C. § 1227(a)(2)(B)(i):
Any alien who at any time after admission has been
convicted of a violation of . . . any law or regulation of a
State . . . relating to a controlled substance (as defined
in section 102 of the Controlled Substances Act (21
U.S.C. 802)), other than a single offense involving
possession for one’s own use of 30 grams or less of
marijuana, is deportable.
The government defends the IJ’s view and points to the case
upon which the IJ relied, Luu-Le v. INS, 224 F.3d 911 (9th
Cir. 2000), where the Ninth Circuit found that an Arizona
drug paraphernalia statute was indeed covered by this INA
provision.
4
We assume that Gutnik’s loss of his lawful permanent resident
status some 9 years after his arrival in the United States consti-
tutes a changed condition that will permit him to apply for asylum
even though it has been far more than a year since he arrived in
the United States. See 8 U.S.C. § 1158(a)(2).
No. 05-3007 7
We find it strange that under the Luu-Le interpretation of
the statute a noncitizen caught with a small article of
paraphernalia used to consume a tiny quantity of mari-
juana could be removable, while a noncitizen actually
caught with the drug, so long as it was less than 30 grams,
would be in no such danger because of the express exception
§ 1227(a)(2)(B)(i) provides for small-quantity marijuana
offenses. This is not merely some abstract possibility—it
may well describe this case. The IJ asked Gutnik about his
conviction for possession of drug paraphernalia:
Q. And where were you arrested at that time? How was
it that you were charged with possession of drug
paraphernalia?
A. I was in a car with—and smoking a joint, and a
police officer pulled up.
This description of the events, if true, suggests that
whatever “paraphernalia” Gutnik was caught with was
clearly for his personal use of less than 30 grams of mari-
juana. Unfortunately, the record provides no further details
about the conduct behind Gutnik’s paraphernalia convic-
tion, and the Illinois statute in question, 720 ILCS 600/3.5,
does not limit its application to offenders holding parapher-
nalia that will be used with more than 30 grams of mari-
juana.
What we do know is that Gutnik pled guilty to the
possession of drug paraphernalia charge. Knowing this, and
based on his testimony regarding his conduct, we might
deduce that he agreed to plead to the lesser paraphernalia
charge rather than face conviction for marijuana possession.
Yet, under the Luu-Le approach to § 1227(a)(2)(B)(i) urged
by the government, Gutnik became deportable by pleading
to the lesser crime. Had he instead taken his chances with
the more serious conviction for marijuana possession, he
would have faced no immigration consequences. Talk about
absurd results.
8 No. 05-3007
But neither side tells us why it is necessary to decide this
issue at this time. The IJ was concerned with whether the
drug paraphernalia offense relates to a controlled substance
because of the effect he believed the resolution of that
question would have on Gutnik’s application for cancella-
tion of removal. One of the requirements to be eligible for
that form of relief is to have continuous physical presence
in the U.S. for 7 years. See 8 U.S.C. § 1229b(a). Under
§ 1229b(d)(1), continuous physical presence ends when a
noncitizen commits a deportable offense or when he or she
is served with a notice to appear, whichever occurs earlier.
Gutnik was served with a notice to appear in 2002, but all
of his convictions preceded that time, and the first of these
was the drug paraphernalia offense in early 1999. In other
words, because Gutnik arrived in the U.S. in August of
1993, the effect of the IJ’s ruling that the drug parapherna-
lia offense made him deportable was to preclude his
eligibility for cancellation of removal.
But Gutnik has since conceded that he is ineligible for
cancellation of removal based upon his two retail theft
convictions, regardless of whether possession of drug
paraphernalia is a deportable offense. Beyond that, we
can find no other reason why the issue now matters. As
we have said, Gutnik has already conceded deportability on
other grounds. His eligibility for asylum is also unaffected:
the IJ has already held that none of his convic-
tions constitute a particularly serious crime under
§ 1158(b)(2)(A)(ii), and there is no serious argument after
Gonzales-Gomez that possession of drug paraphernalia
in Illinois is an aggravated felony. Neither is the exercise of
discretion upon review of his asylum application at
stake: Criminal activity is taken into account as an adverse
discretionary factor in asylum application proceedings
whether or not that activity also happens to make a
noncitizen removable. See Shahandeh-Pey v. INS, 831 F.2d
1384, 1388 (7th Cir. 1987) (describing adverse factors
No. 05-3007 9
properly considered at discretionary stage of asylum
proceedings); cf. Dhine v. Slattery, 3 F.3d 613, 619 (2d Cir.
1993) (“Seven convictions over seven years—even seven
misdemeanors—easily furnish a rational basis for the
Attorney General’s exercise of discretion.”).
None of this is to suggest that Gutnik’s four convic-
tions should outweigh his fear of future persecution if
returned to Ukraine, his strong family ties to the U.S., and
any other discretionary factors that weigh in his favor. It is
for the BIA to make that determination on remand, exercis-
ing the authority given it by the Attorney General. See INS
v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). But we simply
see nothing that will change for Gutnik by our addressing
this aspect of the IJ’s decision, and so we decline to do so.
Finally, Gutnik appeals the IJ’s decision that he is
ineligible at this time to apply for a nunc pro tunc waiver of
inadmissibility under 8 U.S.C. § 1159(c) in conjunction with
an adjustment of status. Whether or not the BIA grants
Gutnik’s application for asylum on remand, his criminal
convictions render him inadmissible to the United States
under 8 U.S.C. § 1182(a), meaning that he is precluded from
successfully adjusting his status to lawful permanent
residency absent some form of waiver. See generally § 1159.
If Gutnik can apply for and be granted that waiver now
notwithstanding his asylum application, he can immedi-
ately try to adjust his status to lawful permanent resident
status under § 1159(a), backdated to his initial date of entry
in 1993. This result would also make him immediately
eligible to naturalize and become a U.S. citizen.
But if he is not eligible to apply for that waiver now,
Gutnik must hope for a grant of asylum and wait one year
before he can apply. If a waiver is then granted, he may
adjust status under § 1159(b), but he will be subject to
two less favorable conditions. First, his adjustment of status
will be subject to the annual numerical limitation on the
10 No. 05-3007
number of adjustments for asylees, see § 1159(b); 8 C.F.R.
§ 209.2(a)(1)(vi). Because history suggests that the number
will be exceeded, Gutnik will be placed on a waiting list.
Second, whenever he is finally able to adjust status, his
lawful permanent residency will only backdate one year
from the date of approval of the application. § 1159(b). In
other words, it will be some time before he can seek U.S.
citizenship.
Eligibility for the more desirable § 1159(a) adjustment
requires that a noncitizen have been admitted to the United
States as a refugee under 8 U.S.C. § 1157. We have already
said that Gutnik meets the definition of refugee under 8
U.S.C. § 1101(a)(42). But in order to achieve refugee status,
a noncitizen must do more than simply meet that definition.
He must undergo an application process, which requires
among other things that he have a sponsor, fill out and file
a form, and undergo an interview. Gutnik went through
this when he came to the United States the first time. But
the government argues, and the IJ agrees, that Gutnik’s
formal refugee status ended when he adjusted to lawful
permanent residency.
Gutnik disagrees. He contends that he continues to
maintain refugee status in perpetuity because § 1101(a)(42)
contains no temporal limits and the INA and subsequent
regulations provide formal procedures by which the govern-
ment may terminate refugee status, see § 1157(c)(4); 8
C.F.R. §§ 207.9, 240.35(c), and none of those procedures
have been undertaken here. He also points to § 1159(a),
which explains that refugees under § 1157 who adjust
status shall be “regarded as lawfully admitted to the United
States for permanent residence.” § 1159(a)(2) (emphasis
added). Under Gutnik’s reading, the “regarded as” language
says it all: after he adjusted status, he was, in legal effect,
a refugee regarded as a lifetime permanent resident. Once
the government successfully terminated his lawful perma-
nent resident status, Gutnik simply reverted to being a
No. 05-3007 11
“mere” refugee. In his view, the government must take a
further formal step, which it has not, to strip away that
status.
The government counters by pointing out that adjustment
of status under § 1159(a) only applies to noncitizens who
have not “acquired permanent resident status.” Id.
§ 1159(a)(1)(C). Gutnik may have lost his permanent
resident status, but that does not negate the fact that he
has already acquired it. The government has also unearthed
some favorable legislative history that suggests
a congressional intent for refugee status and lifetime
permanent residency to exist exclusively of one another.
See, e.g., 126 Cong. Rec. S3756, 3757 (Feb. 26, 1980)
(describing how new refugee status will end after one
year, “after which the refugee can adjust to permanent
resident status”).
Where the language of the INA is ambiguous, we will
ordinarily accord Chevron deference to the BIA’s reading if
it is based on a permissible construction. INS v. Aguirre-
Aguirre, 526 U.S. 415, 424-25 (1999). The wrinkle here
is that the BIA’s decision was issued under the streamlined
procedures of 8 C.F.R. § 1003.1(e). Those procedures direct
a single BIA member (rather than the three-member panel
traditionally used) to dispose of appeals either by affirming
the IJ’s opinion without order, see § 1003.1(e)(4), or by
supplementing that opinion with a “brief order,” see
§ 1003.1(e)(5).
Here the BIA followed § 1003.1(e)(5) and issued a brief
order agreeing with the immigration judge and supplement-
ing his reasoning:
Although the respondent was admitted to the United
States as a refugee under section 209 of the Act, his
status was subsequently adjustment [sic] to lawful
permanent resident. The respondent’s contention that
he remains eligible for a section [1159(c)] waiver under
12 No. 05-3007
these circumstances places him at an unfair advan-
tage over other aliens and would improperly insulate
him from his criminal misconduct which occurred many
years after his arrival as a refugee.
We have not previously directly addressed the issue
whether BIA interpretations made pursuant to the stream-
lined procedures of § 1003.1(e) merit Chevron deference,
although deference appears to have been assumed in
some cases. See, e.g., Knutsen v. Gonzales, 429 F.3d 733,
736 (7th Cir. 2005). But Gutnik directs us to a decision from
the Third Circuit, Smriko v. Ashcroft, 387 F.3d 279 (3d Cir.
2004), that he insists is applicable here.
The facts of Smriko look strangely familiar. The case
involved the appeal of a citizen of Bosnia-Herzegovina
admitted to the United States as a refugee but convicted of
three retail theft offenses that earned him the INA’s
attention. 387 F.3d at 282. Like Gutnik now, Smriko argued
that he maintained his refugee status even after being
stripped of his permanent residency because it could only be
terminated in accordance with certain enumerated grounds
in the INA. Id. at 283. The IJ disagreed, finding without
reference to supporting precedent that Smriko’s refugee
status ended when he adjusted to permanent residency. Id.
at 282. The IJ ordered his removal and a single BIA
member affirmed without opinion, pursuant to the stream-
lined procedures of 8 C.F.R. § 1003.1(e)(4). Id.On appeal, the Third Circuit determined, as we do, that
the INA provisions relating to the interplay between
refugee and permanent resident status are ambiguous. It
then noted that, although under Chevron and Aguirre-
Aguirre it would usually defer to a plausible “agency
answer,” the IJ’s decision “offered no analysis of the
relevant statutory provisions,” which, when combined
with the single-member BIA affirmance without opinion,
left the court with no analysis of the statutory interpreta-
No. 05-3007 13
tion issue to which it could defer. Id. at 288-89. The court
then questioned whether the very rationale underlying
Chevron deference could be said to apply to the streamlined
procedures:
As Aguirre-Aguirre determined that the BIA’s case-by-
case decision-making should be accorded Chevron
deference, it would seem to be, at the very least, an
open question as to whether an IJ’s decision affirmed
through the streamlining process would be entitled to
Chevron deference. Although the BIA has directed us to
review the IJ’s opinion in streamlined cases, deferring
to the reasoning of an IJ from which the BIA would be
free to depart in other cases would seem highly prob-
lematic.
Id. at 289 n.6 (emphasis in original).
Despite Gutnik’s pleas to the contrary, however, his case
differs from Smriko. Unlike in that case, the IJ’s order as to
Gutnik was not affirmed without opinion under 8 C.F.R.
§ 1003.1(e)(4); the BIA used the alternative streamlined
procedures of 8 C.F.R. § 1003.1(e)(5). In other words, the
BIA provided reasoning, albeit brief, to which we can defer.
Even though we might interpret the statute in Gutnik’s
favor upon de novo review of the issue, we are mindful that
“[j]udicial deference to the Executive Branch is especially
appropriate in the immigration context.” Aguirre-Aguirre,
526 U.S. at 416. We therefore adopt the BIA’s interpreta-
tion.
But we are not finished with Smriko. Gutnik has made an
additional argument that his case was improperly subjected
to the streamlined review process in the first place because
the legal issue regarding the effect of adjustment of status
upon a noncitizen’s refugee status is not governed by any
prior BIA or federal court precedent. As a result, Gutnik
argues, his case falls within one of the exceptions set forth
in the streamlining regulations at 8 C.F.R. § 1003.1(e)(6)
14 No. 05-3007
such that his appeal of the IJ’s decision should have been
reviewed by a three-member BIA panel. Cf. Smriko, 387
F.3d at 289. Section 1003.1(e)(6) provides:
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;
(ii) The need to establish a precedent constru-
ing the meaning of laws, regulations, or procedures;
(iii) The need to review a decision by an immigra-
tion 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 immi-
gration judge or the Service, other than a reversal
under § 1003.1(e)(5).
In Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003), we
found that the streamlined review scheme withstands
constitutional challenge on due process grounds, but we
also hinted at some room for courts to monitor the ap-
plication of those procedures to a given case. Although
Gutnik has not referenced Georgis in his brief, his argu-
ment sounds like an attempt to present his case as an
example of a particularly troublesome hypothetical scenario
that we anticipated in that decision.
In the course of considering a challenge to the use by
the BIA of the streamlining procedures, we determined
in Georgis that in most cases our ability to undertake a full
review would not be affected by the propriety of the BIA’s
decision whether or not to streamline a case because, even
No. 05-3007 15
if the BIA had given us nothing to review, we could still
look to the IJ’s opinion. Id. at 967. But we also noted one
example in which we believed the use of those procedures
could make a significant difference. As we explained:
Consider, on the other hand, a case that is not
“controlled by existing Board or federal court prece-
dent”; for instance, a case interpreting a new regula-
tion. If the BIA (improperly) streamlined that case,
which then came before us on appeal, it could make a
slight difference whose decision we review. If we look at
the IJ’s, we would decide the legal issue on the merits.
But if we look at the BIA’s, we would simply say that
the case should have been considered by a three-Mem-
ber panel and remand to the BIA for consideration. And
this latter course seems preferable because it gives the
BIA the first crack at interpreting its own rules.
Id. at 967 n.4.
Although the issue was discussed in Jarad v. Gonzales,
461 F.3d 867 (7th Cir. 2006), we have yet to definitively
determine whether we even have jurisdiction to review a
BIA decision to commit an appeal to streamlined proce-
dures. Other circuits have split on this question. Compare
Kambolli v. Gonzales, 449 F.3d 454, 460-65 (2d Cir. 2006)
(no jurisdiction), and Tsegay v. Ashcroft, 386 F.3d 1347,
1353-58 (10th Cir. 2004) (same), and Ngure v. Ashcroft, 367
F.3d 975, 983 (8th Cir. 2004) (same), with Smriko, 387 F.3d
at 290-95 (remanding case for three-member BIA panel
review), and Chong Shin Chen v. Ashcroft, 378 F.3d 1081,
1086-88 (9th Cir. 2004) (same), and Haoud v. Ashcroft, 350
F.3d 201, 206-08 (1st Cir. 2003) (same). But assuming that
we do, Gutnik’s case, though similar, is not the hypothetical
we envisioned in Georgis. Like Smriko, Georgis was con-
cerned with the situation in which the BIA affirmed the IJ
without opinion under 8 C.F.R. § 1003.1(e)(4). The discus-
sion in Georgis recognizes that, because (e)(4) provides that
16 No. 05-3007
a single BIA member “may affirm . . . if the Member
determines . . . that . . . the issue on appeal is squarely
controlled by existing Board or federal court precedent,” we
would have some concerns—again, assuming jurisdic-
tion—if the novel issue reached by the IJ here were simply
affirmed without opinion.
We point out again that for Gutnik, the BIA issued a brief
order under the (e)(5) procedure. That provision does not
expressly require the reviewing single Board member to
abstain from resolving issues not controlled by exist-
ing precedent. Instead, it says only that “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
. . . .” 8 C.F.R. § 1003.1(e)(5). We read (e)(4) and (e)(5)
together to require only that the BIA not review cases
resolving novel issues by affirmance without opinion. At
that point, the single BIA member may elect to refer the
appeal to a three-member panel, but there is no require-
ment that she do so.
It may well be preferable as a theoretical matter that
resolution of any legal questions not controlled by prior
precedent be submitted to a three-member BIA panel for
review, and we would encourage the BIA to proceed in
this fashion when possible. But to read the streamlining
regulations contrary to their plain language and require
such a step would greatly weaken their designed effect
by encouraging BIA members to ignore the (e)(5) proce-
dure altogether and send anything requiring elaboration to
a three-member panel. It would only exacerbate the difficul-
ties created by the BIA’s already heavy caseload.
In any case, the use of the (e)(5) procedure tempers the
fears we raised in Georgis: the BIA has indeed had “first
crack” at interpreting its own rules in this case, and IJs
addressing this issue in the future will have authoritative
No. 05-3007 17
precedent upon which to rely. We therefore affirm the
BIA on this issue. Gutnik no longer qualifies as a refugee
and is therefore ineligible to apply for a § 1159(c) waiver of
inadmissability in conjunction with an adjustment of status.
The petition for review is GRANTED as to some aspects of
Gutnik’s appeal and DENIED as to others as discussed
herein. The matter is REMANDED for further proceedings.
Mr. Gutnik is awarded costs on his appeal.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-29-06