FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHONG SHIN CHEN, 

Petitioner, No. 02-73473

v. Agency No.  A29-554-882 ALBERTO R. GONZALES,* Attorney

General, ORDER

Respondent. 

Filed June 10, 2005

Before: J. Clifford Wallace, Alex Kozinski, and

Sidney R. Thomas, Circuit Judges.

Order;

Dissent by Judge Bea

ORDER

Judges Kozinski and Thomas have voted to deny the petition for rehearing. Judge Wallace has voted to grant the petition for rehearing. A judge of the Court sua sponte requested

a vote on whether to rehear the case en banc. A vote was

taken on the request, and it failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. 

The petition for panel rehearing is DENIED.

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,

as Attorney General of the United States, pursuant to Fed. R. App. P.

43(c)(2). 

6785
BEA, joined by O’SCANNLAIN and KLEINFELD, Circuit

Judges, dissenting from denial of rehearing en banc: 

In this case, the Panel Majority concludes that this court

has jurisdiction to review the BIA’s decision to streamline

pursuant to 8 C.F.R. § 3.1(a)(7)(ii)(A)-(B)(2002), recodified

at 8 C.F.R. § 1003.1(a)(7)(ii)(A)-(B) (2003).1 In my view, the

Panel Majority errs in three respects. Accordingly, I respectfully dissent from our court’s order denying rehearing en banc

for the following reasons: 

First, the Panel Majority’s decision does not state a standard of review by which this court may (or may not) determine when the BIA action of affirmance-by-one judge is or

is not permissible. This omission probably occurred because,

as yet, no principled basis for the Panel Majority’s actions has

been articulated. 

Second, the ground stated by the Panel Majority for what

is a “substantial” question under the regulation, 8 C.F.R.

§ 1003.1(a)(7)(ii)(B), is simply that the decision will affect

many people. Chen v. Ashcroft, 378 F.3d 1081, 1086-87 (9th

Cir. 2004) (noting that “[r]esolution of the legal and factual

issues raised by Chen affects every People’s Republic of

China national who entered the United States illegally but was

then granted deferred enforced departure status by Executive

Order 12,711, a sweeping Order that applied to every People’s Republic of China national who was in the United States

at the time.”). But so would a decision that entrants be

required to sign visa applications or customs declarations. The

basis of a decision may be such clear law that the BIA decides

it is not qualitatively “substantial” in the sense that resources

(3 BIA members) should not be dedicated to its determination. Which is what happened here: the decision that delay in

departure pursuant to the Chinese Student Protection Act is

not the “functional equivalent of parole” for purposes of

1Now codified at 8 C.F.R. § 1003.1(e)(4)(i)(A)-(B) (2004). 

6786 CHEN v. GONZALES
excusing illegal entrants from INA § 245(a) is so clear as to

be qualitatively insubstantial, although quantitatively, it may

affect many persons. 

Third, Falcon Carriche’s dicta regarding the possible case

where this court would have jurisdiction to review agency

determination to streamline2 deals only with subclause “(A)”

of cited CFR section, not subclause “(B).”

3

 That is, it is a nondiscretionary act of the BIA to determine whether there is

“Board or federal court precedent and does not involve the

application of precedent to a novel fact situation.” See 8

C.F.R. § 1003.1(a)(7)(ii)(A). But that has nothing to do with

the decision making process of subclause “(B),” i.e., “whether

the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted.” See 8

C.F.R. § 1003.1(a)(7)(ii)(B). Subclause “(B)” involves an

agency determination of how to spend its resources. It constitutes a “fourth prong” of the BIA regulations. If the BIA is to

2

See Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 (9th Cir. 2003):

Although we conclude that we do not have jurisdiction to review

the streamlining decision here . . . we . . . express no opinion on

whether, although rare, a truly novel case could arise for which

a decision to streamline could be found erroneous as a matter of

law under the third prong of the BIA regulations. See 8 C.F.R.

§ 1003.1(a)(7)(ii)(A). 

Falcon Carriche, 350 F.3d at 854 (emphasis added). 

3

I respectfully disagree with Judge Wallace’s generous concession that

Falcon Carriche’s reference to the “third prong” of the regulations

includes both subclauses (A) and (B). See Chen, 378 F.3d at 1090 (Wallace, J., dissenting). Rather, as I read Falcon Carriche, the “third prong”

refers only to subclause (A) of 8 C.F.R. § 1003.1(a)(7)(ii). Indeed, the citation to 8 C.F.R. § 1003.1(a)(7)(ii)(A) after the disputed sentence in Falcon

Carriche (see fn. 2, supra) supports such a limited reading. In my view,

the “first prong” of 8 C.F.R. § 1003.1(a)(7)(ii) is (1) “that the result

reached in the decision under review was correct”; the “second prong” is

(2) “that any errors in the decision under review were harmless or nonmaterial; and the “third prong” is (3) that “[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.” 

CHEN v. GONZALES 6787
be second-guessed as to how it spends its resources, it should

be done, if at all, on the basis of “abuse of discretion.” There

is nothing in the Chen panel majority decision to show that

any such consideration took place. 

For these reasons and those stated by Judge Wallace in his

eloquent dissent from the Panel’s opinion, I respectfully dissent from the denial of rehearing en banc.

6788 CHEN v. GONZALES



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