*Of the Ninth Circuit, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 02-1541

MARWAN YOUSSEF ALBATHANI,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Circuit Judge,

Farris,* Senior Circuit Judge,

and Lipez, Circuit Judge. 

Ronald L. Abramson, with whom Abramson, Bailinson & O'Leary,

P.C., was on the brief for petitioner.

Beth Werlin, with whom Mary A. Kenney, Nadine K. Wettstein,

Iris Gomez, Harvey Kaplan, and Kaplan, Sullivan & Friedman were on

the brief for American Immigration Law Foundation, amicus curiae.

John C. Cunningham, Senior Litigation Counsel, Office of

Immigration Litigation, with whom Robert D. McCallum, Jr.,

Assistant Attorney General, Linda S. Wendtland, Assistant Director,

and Terri J. Scadron, Senior Litigation Counsel, were on the brief

for respondent.

February 6, 2003
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LYNCH, Circuit Judge. Marwan Youssef Albathani, a native

and citizen of Lebanon, petitions for review of the Board of

Immigration Appeal's (BIA's) summary affirmance of an Immigration

Judge's denial of his application for asylum, withholding of

deportation, and relief under the United Nations Convention Against

Torture. His case raises a challenge, new for this court, to the

validity of the BIA's streamlining procedures adopted in 1999. 8

C.F.R. § 3.1(a)(7)(2002)(amended by 67 Fed. Reg. 54,878 (Aug. 26,

2002)).

Albathani, a Maronite Christian, sought asylum on the

basis that he feared persecution by members of Hezbollah active in

Lebanon. He arrived in the United States in January 1999 without

any valid documents permitting entry. He was taken into custody by

the INS and had an initial interview and a subsequent credible fear

interview; he was found to have a credible fear of persecution. He

was allowed to remain in the United States pending a hearing on his

asylum and other claims. At the hearing in September 2000, the

Immigration Judge (IJ) found Albathani's story not credible and

denied his application. Her finding was affirmed by the BIA in a

summary affirmance under 8 C.F.R. § 3.1(a)(7). 

Albathani challenges this ruling on several grounds: both

that his hearing before the IJ denied him due process of law, for

several reasons, and that the summary affirmance procedure itself

violates due process. Additionally, an amici curiae brief filed by
1 We express our appreciation to amici for their valuable

assistance.

-3-

the American Immigration Law Foundation, the New England Chapter of

the American Immigration Lawyers Association, and the Massachusetts

Law Reform Institute argues that the summary affirmance procedure

also violates rules of administrative law.1 We affirm.

I.

From the 1940s to the 1970s, political power has been

shared in Lebanon between members of different religious

communities. The president is traditionally a Maronite Christian,

while the prime minister is traditionally a Sunni Muslim. 

Lebanon's Parliament is also divided on a system of proportional

representation based on religion. This compromise broke down in

the 1970s, however. Between 1975 and 1990, Lebanon was wracked by

conflict, both between Lebanese Christians and Muslims, and among

foreign forces. According to the State Department, non-Lebanese

military forces control much of the country. See Malek v. INS, 198

F.3d 1016, 1018 (7th Cir. 2000). A variety of militias are

associated with different groups in Lebanon, both foreign and

domestic. The conflict between two of those militias is pertinent

here: the Lebanese Forces, a rightist, Christian militia, and

Hezbollah, an Islamicist militia with foreign support.

The Lebanese Forces was affiliated with the Christian

Phalangist militia, a Maronite group which had fought against
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Muslim nationalists in 1975, touching off Lebanon's civil war. 

The Lebanese Forces was founded in 1976. In 1991, it was licensed

as a political party, but in 1994 it was banned and a number of

members were arrested because of alleged involvement in the bombing

of a church. The leader of the Lebanese Forces, Samir Geagea, was

also arrested and charged with the murder of a political rival. In

1995, Geagea was found guilty and sentenced to death, although the

sentence was commuted to life imprisonment. Subsequently, Geagea

was charged with the 1987 assassination of Muslim Prime Minister

Rashid Karami. Other members of the Lebanese Forces were convicted

of a 1996 bus bombing in Syria which killed eleven people.

Hezbollah, meanwhile, is a Shia Muslim political group

backed by Iran. It became prominent in the mid-1980s in battles

against Israeli forces in southern Lebanon. In Lebanon, Hezbollah

operates in the Bekaa Valley, the southern suburbs of Beirut, and

southern Lebanon. It is known or suspected to have been involved

in terrorist attacks including the truck bombings of the U.S.

Embassy and marine barracks in Beirut in October 1983. See U.S.

Dep't of State, Background Information on Foreign Terrorist

Organizations (Oct. 8, 1999), available at http:/www.state.gov/

www/global/terrorism/fto_info_1999.html. On November 2, 2001,

Hezbollah was added to the list of terrorists and groups linked to

terrorism covered by Executive Order No. 13,224, 66 Fed. Reg.

49,079 (Sept. 23, 2001), which blocked access to their assets. See
-5-

U.S. Dep't of State, Comprehensive List of Terrorists and Groups

Identified Under Executive Order 13224, available at http:

www.state.gov/s/ct/rls/fs/2001/6531.htm.

Marwan Albathani, a Maronite Christian, was born in

Lebanon on November 15, 1973, and grew up in the midst of this

conflict. Members of his family were involved in the Lebanese

Forces, including an older brother, who was a captain of the

Lebanese Forces in the Dikwane district of Beirut. Albathani lived

in Beirut, as did some of his sisters and brothers. His father and

other sisters lived in Deir El-Ahmar, approximately two hours to

the east of Beirut. Other of his relatives lived in the United

States. Albathani sometimes worked in Beirut, sometimes not; when

he worked it was as either a car mechanic or a car dealer.

Albathani asserted that after persecution by members of Hezbollah

he decided to flee Lebanon. 

Albathani traveled to Cyprus in November 1998, where he

applied for a tourist visa to the United States but did not seek

refugee status. On his application, Albathani claimed that he was

married, that he worked as an electrician, that he had no relatives

in the United States, and that he had no intention of working or

studying in the United States (all untrue). Albathani's visa

application was denied. Albathani then returned to Cyprus in

January 1999, with a visa to Panama, purchased a plane ticket to
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Panama by way of London and Miami, and got off in Miami on January

14. He was immediately taken into custody by INS officers. 

A. Initial INS Interview

That day an INS officer with a translator interviewed

Albathani. Albathani said he was "escaping from Lebanon because of

the Hezbollah," which was harassing him because he was not Muslim.

He said that he was a car salesman, and that both his mother and

brother resided legally in the United States. Albathani admitted

that he had no intention of going to Panama and wanted to stay in

the United States. Based on this initial interview, the INS

officer scheduled a further credible fear interview.

B. Credible Fear Interview

During his credible fear interview on January 27, 1999,

three different interpreters were required before one was found who

could understand Albathani's difficult accent. Albathani told the

interviewing INS officer that he had served as a "regular soldier"

in the Lebanese Forces for five years. His problems began in the

mid-1990s; at that time whenever he visited his family in Deir ElAhmar he was stopped and questioned by members of Hezbollah. On

one occasion, three months before he left Lebanon, according to

Albathani, he was stopped for four hours. He and his brother were

tied up, Albathani was slapped in the face, they were placed in the

trunk of a car, and robbed of $1,200 and some jewelry. Albathani

attributed this to Hezbollah knowledge that he was a member of the
2 Once in the United States, Albathani was arrested twice,

once for using someone else's credit card (although he claimed to

be merely trying to return it), and once for selling alcohol to a

minor. 

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Lebanese Forces. He said that he was arrested "several times," but

could not provide a specific number. He had to leave Lebanon

because he feared being kidnapped by Hezbollah members. 

Based on this interview, Albathani was found to have a

credible fear of prosecution based on membership in a particular

social group, namely the Lebanese Forces. The officer found that

he was credible, that his testimony was "detailed, internally

consistent, consistent [with] country conditions and any other

extrinsic evidence," and that there was a "significant possibility

that he ... could establish eligibility for asylum." Albathani was

subsequently allowed to move from Miami to New Hampshire, where his

family was located.2

C. Asylum Hearing

Albathani had submitted an application for asylum on

October 14, 1999, in Miami. He admitted his illegal entry and

conceded deportability. His application for asylum described two

assaults by Hezbollah. In the first, in April 1996, he claimed he

was stopped, interrogated, jailed in the town of Vaibalk, beaten

and left by a roadside. He said he was then picked up and taken to

a hospital, where he remained in a coma for over two weeks. In the

second, more than two years later, he asserted he was again stopped
-8-

and beaten, robbed of his car and money, and his life was

threatened. Albathani said that this assault took place in

December 1998, although in both his credible fear interview and the

subsequent hearing before the IJ he dated it earlier, in either

September or October 1998. No mention is made of a later threat.

Albathani also described his work in the Lebanese Forces in greater

detail, alleging that he had been a member since 1989, that he

worked as a secretary from 1989 to 1992, and that from 1992 to 1998

he served as bodyguard for the group's leader. Albathani sought

asylum, withholding of removal, and relief under the United Nations

Convention Against Torture. 

Albathani's asylum hearing took place in Boston, after he

was granted a change of venue from Miami. In the hearing before

the IJ on September 28, 2000, Albathani had one interpreter; the IJ

expressed concerns that the interpreter had not brought an Arabic

dictionary and had engaged in numerous colloquies with Albathani.

Albathani was the only witness.

Albathani testified about two beatings on the road to his

parents' house which were sketched out in his asylum application.

We summarize what he said. The Lebanese Forces had ceased to

participate as a political party as of 1995, and "had fallen

apart," prior to both incidents. The area around his parents'

house was controlled by Hezbollah. Hezbollah had a list of names

of those who had served in the Lebanese Forces. In 1996, when
-9-

driving alone, Albathani was stopped by individuals he recognized

as Hezbollah because of distinctive flags on their cars. They

asked for his ID, took all his belongings, blindfolded him and hit

him. Albathani lost consciousness during the beating and woke up

in a hospital. Albathani reported this to the police, who declined

to get involved with Hezbollah-related incidents. When asked if he

had a copy of the police report, the interpreter reported his reply

as, "No, he wasn't worried about the problem, [w]hen they told me

that they can't help me when it comes to Hezbollah." 

In the next two years, there were no further incidents.

That was because Albathani was so afraid he did not go out. When

questioned on this point he replied he did not mean he was afraid

to go out, or to leave the house in Beirut, but he did not dare

drive to see his parents. He did, however, travel to Syria and

return to Lebanon sometime in the fall of 1998, shortly before the

second beating. As to the 1998 incident, Albathani testified to

the following. In September or October 1998, Albathani was

travelling with his younger brother and a friend to his parents'

house when they were stopped at a Hezbollah roadblock. Albathani

was again asked for his ID, his belongings were taken, and he was

beaten on his head and hands. Hezbollah asked him how long he had

been with the Lebanese Forces. Afraid, he denied he had ever been.

As he was being beaten, his captors told him "say that you were in

the Lebanese Forces, otherwise you die." Albathani was again left
-10-

unconscious, and woke up in a hospital. His younger brother was

blindfolded, but not beaten or robbed. 

On both occasions, Albathani's cars -- both Mercedes --

were stolen by Hezbollah. He had scars on his back, hands and head

as a result of the two beatings. The IJ suggested that photographs

of them should be submitted so it would be in the record, but

declined to make a closer firsthand examination of the scars. The

record shows the IJ had a clear view of petitioner during the

hearing.

In December 1998, members of the Hezbollah went to

Albathani's sister's house and told her "if he stays over here he

should consider death for himself. The first time he was able to

run away, but now it's going to be death for him." Shortly

thereafter, he looked for help to leave Lebanon. The message

triggered his flight to the United States in January 1999.

During the period of the incidents, Albathani left

Lebanon twice: once to Syria for two days, and once to Cyprus for

two days. He returned to Lebanon each time. While in Cyprus in

November 1998, he filled out a visa application, which contained

falsehoods. During the hearing before the IJ, he explained the

falsehoods by saying that someone else, possibly his brother,

filled out the application; he just signed it. 

The IJ rendered an oral decision the same day as the

hearing. She rejected Albathani's claim for relief under the
-11-

Convention Against Torture because he had not shown injury at the

hands of the government. She also rejected Albathani's application

for asylum and withholding of deportation. The IJ found

Albathani's testimony not credible, noted that he ran into

difficulty with Hezbollah only when he drove the road to his

parents' house, credited that he had been robbed but observed that

his brother (who was with him during the incident) was neither

harmed nor robbed, and commented that Albathani had returned to

Lebanon from Cyprus after the incidents. 

The IJ found Albathani's testimony not credible for a

number of reasons. The details of the incidents varied from

telling to telling, and there were internal contradictions in his

account. For example, he claimed at the asylum hearing to be

unconscious after the 1998 beating, but said in the earlier

interview that he and his brother had been slapped and their money

taken, they were forced into the trunk of a car, and driven to a

"dark place" and left. Not only did he not mention being

unconscious, he even described the place he was confined.

Moreover, in the later account, Albathani said that his brother was

unharmed, not placed in the trunk of a car, and did not have

anything stolen from him. The IJ concluded that this, and other

inconsistencies, were material differences that made Albathani a

"less than credible witness."
-12-

The IJ also noted that Albathani had not produced

corroborative evidence in the form of testimony by relatives who

were in the United States. His mother lived in Boston and recently

had become an American citizen, but, for whatever reason, had left

the country two weeks before the scheduled hearing before the IJ.

She might have confirmed his testimony that she was at his hospital

bedside after the 1998 incident. He also had an uncle in Boston

and his brother and cousin lived in the United States, none of whom

testified on his behalf. 

The IJ cited Albathani's abuse of immigration procedures,

both in filling out the application for a tourist visa

fraudulently, and in not filing for admission to the United States

as a refugee from persecution at the United States Embassy in

Cyprus. See generally 8 U.S.C. § 1158 (2000)(describing normal

asylum procedures).

The IJ also questioned whether the attacks were motivated

by political reasons, noting that Albathani was robbed on both

occasions, and deprived of not one but two Mercedes. He also lost

a large amount of money -- $1,200 by his own account in one

incident -- and gold jewelry. She concluded, "At least one of the

motives of the person stopping the car clearly appears to be

robbery." 

Finally, the IJ surmised that Albathani could have

avoided further incidents by relocation, either by leaving Lebanon,
3 The Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,

was implemented in the United States by the Foreign Affairs Reform

and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112

Stat. 2681-761 (codified at 8 U.S.C. § 1231 (2000)). Article 3

prohibits states from returning individuals to other states where

there are substantial grounds for believing they would be subject

to torture.

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or by changing his behavior. She cited Albathani's visits to Syria

and Cyprus as evidence of his ability to avoid persecution without

seeking asylum in the United States. She concluded that

Albathani's "goal was to come to the United States," not to avoid

persecution. The IJ also focused on the fact that both incidents

took place in a single location -- the road between Beirut and Deir

El-Ahmar. She suggested that Albathani could have avoided the

problem in Lebanon by seeking alternative routes or means of

transportation to his parents' home. 

In sum, the IJ concluded that Albathani had not shown a

credible fear of persecution on one of the statutory grounds for

asylum. Because he failed to meet the test for asylum, he could

not meet the more stringent test for withholding of removal. He

also was not entitled to relief under Article 3 of the Convention

Against Torture as he had not shown he had been tortured at the

hands of the government.3 The IJ ordered him deported from the

United States. Albathani appealed the IJ's decision to the BIA on

October 28, 2000. On April 9, 2002, utilizing the summary
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affirmance procedure, the BIA affirmed without opinion the results

of the IJ's decision. 

II. 

Petitioner characterizes his challenge of the IJ/BIA

decision as being on due process grounds. He does not directly

raise a claim that the decision is not supported by substantial

evidence, but asserts instead that the decision improperly

overlooked evidence, that the judge improperly hurried the hearing

along, and that she berated the interpreter. The first ground is,

in our view, just a variation on a substantial evidence challenge,

and so we apply the usual substantial evidence standard. See,

e.g., Mediouni v. INS, 314 F.3d 24, 26 (1st Cir. 2002); CorderoTrejo v. INS, 40 F.3d 482, 487 (1st Cir. 1994). Determinations of

eligibility for asylum or withholding deportation are conclusive

"if supported by reasonable, substantial, and probative evidence on

the record considered as a whole." INS v. Elias-Zacharias, 502

U.S. 478, 481 (1992)(internal quotation omitted).

"To reverse the BIA finding we must find that the

evidence not only supports that conclusion, but compels it." Id.

at 481 n.1; see also 8 U.S.C. § 1252 (b)(4)(B)(2000)("[T]he

administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary."); Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.

1999) (no reversal unless "the record evidence would compel a
-15-

reasonable factfinder to make a contrary determination"). Merely

identifying alternative findings that could be supported by

substantial evidence is insufficient to supplant the BIA's

findings. See Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992).

The INS is not entitled to extreme deference, although

our review is deferential. Gailius v. INS, 147 F.3d 34, 44 (1st

Cir. 1998). Review of the BIA's decisions is conducted on the

basis of the entire record, not merely the evidence that supports

the BIA's conclusions. Id. Additionally, this "court reviews the

BIA's legal conclusions de novo, although it gives deference, where

appropriate, to the agency's interpretation of the underlying

statute in accordance with administrative law principles." Debab

v. INS, 163 F.3d 21, 24 (1st Cir. 1998) (internal quotation

omitted).

Because the "more likely than not" standard for

withholding deportation is more stringent than that for asylum, a

petitioner unable to satisfy the asylum standard fails, a fortiori,

to satisfy the former. Mediouni, 314 F.3d at 27. "[W]ithholding

is mandatory if an alien 'establishes that it is more likely than

not that he would be subject to persecution on one of the specified

grounds.'" INS v. Aguirre-Aguirre, 526 U.S. 415, 419 (1999)

(quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)). For that

reason, we consider first the denial of Albathani's application for

asylum.
4 Albathani does not appeal the IJ's decision regarding his

claim under the Convention Against Torture.

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III. 

A. Denial of the Application for Asylum

The burden of proof for establishing eligibility for

asylum lies on the petitioner. 8 C.F.R. § 208.13(a). Applicants

must show either past persecution or well-founded fear of future

persecution. Id. § 208.13(b). Such past or future persecution

must be based on "race, religion, nationality, membership in a

particular social group, or political opinion." Id. §

208.13(b)(1). The petitioner bears the burden of providing

"conclusive evidence" that he was targeted on any of the five

grounds. Velásquez v. Ashcroft, No. 01-1741, 2002 WL 31904478, at

*2 (1st Cir. Dec. 30, 2002); see, e.g., Aguilar-Solis, 168 F.3d at

571 (finding that petitioner failed to carry his burden in proving

past persecution because his account lacked the requisite degree of

specificity, and because "the vague evidence of alleged persecution

that the petitioner adduced failed to establish a sufficient nexus

between the events that he described and any ground enumerated").

Here, we conduct our substantial evidence review of the

IJ's decision regarding asylum and withholding of deportation,4

rather than the BIA's opinion. "Ordinarily, Courts of Appeals

review decisions of the [BIA], and not those of an IJ. When the

BIA does not render its own opinion, however, and either defers
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[to] or adopts the opinion of the IJ, a Court of Appeals must then

review the decision of the IJ." Gao v. Ashcroft, 299 F.3d 266, 271

(3d Cir. 2002). 

The burden was on Albathani to show that he was

persecuted based on his membership in a particular social group, or

for his political opinions. See 8 C.F.R. § 208.13(b). We assume

arguendo that membership in the Lebanese Forces satisfies the

"particular social group or political opinion" categories. The

difficulty for Albathani is that the IJ did not find him credible

on these claims. Accepting that he had been robbed and beaten by

Hezbollah, the IJ did not find this to be persecution based on one

of the five categories. The record provides adequate reason for

doubt. The two incidents on the road may well have been, as the IJ

suggested, nothing more than the robbery of someone driving a

Mercedes with cash in his pocket. The IJ thought Albathani's fear

of persecution was undercut by his twice returning to Lebanon after

trips abroad. 

It is true that the IJ did not specifically comment on

his evidence -- a significant omission -- that Hezbollah later

visited his sister's house and threatened him, and that this visit

led him to seek refuge in the United States. But there was reason

to doubt the event occurred; only Albathani's word established it,

and there was a conspicuous lack of corroborating evidence from his

family members in America. This is not an instance of the INS
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improperly insisting on evidence that was not likely to be

available to a refugee. See, e.g., Gailius, 147 F.3d at 45-46.

There is nothing in the record to establish that Albathani was

denied communication with his family in America. He was

represented by counsel, and his cousin was present at one hearing

with him. Indeed, Albathani was living with his brother in New

Hampshire at the time of the hearing, and his aunt was present at

an earlier hearing. He was also in contact with his older brother,

then in Brazil, who had been in the Lebanese Forces and could have

corroborated much of his story. 

Petitioner argues that the IJ ignored evidence of

Albathani's limited capacities in making her decision. We do not

find support for this. The IJ's decision acknowledges Albathani's

limited education (he left school at 15) and claim that he had head

"trouble" since his beatings in her decision. His inarticulateness

at the hearing was recognized by both the IJ and his own counsel.

The IJ also noted Albathani's tendency to "fluctuate" on dates

during the hearing, but did not rely on such changes in her

decision. For example, during the hearing Albathani initially

testified that his travel to Syria took place in 1999, even though

he had already left for the United States by that date. He also

demonstrated a tendency to agree with whatever assertion was put to

him. During cross-examination, Albathani said that during his trip

to Syria, he had received passport stamps from both the Syrian and
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Lebanese border guards, testimony which was belied by his passport.

The IJ took these limitations into account, commenting during the

hearing that she did not "hold [his inarticulateness] against him."

Albathani's inconsistency problems go well beyond mere

fluctuations. He showed a pattern of embellishing his story. In

each context, Albathani added a new incident. He originally

described a single beating (the 1998 one) in his credible fear

interview. He did not mention at that time that he was

hospitalized as a result of this beating. Then, in his

application, Albathani added a 1996 incident, complete with

hospitalization and a coma, as well as expanding the later incident

to include almost a week's hospitalization. At the hearing itself,

Albathani mentioned for the first time a second incident in 1998,

the December threat delivered to his sister. Given this pattern,

we find adequate support for the IJ's reservations regarding

Albathani's credibility.

As petitioner points out, some instances in the record

support his credibility. One example is his correct identification

of a Lebanese Forces commander. It is also true that the IJ did

not explicitly discuss the Country Conditions Report for Lebanon,

admitted into evidence, other than as useful background. These

Reports provide some support for Albathani's claimed fear of

kidnapping and murder. Hezbollah is reported to detain and

mistreat prisoners from groups to which it is opposed. There is no
5 Albathani, citing Matter of Pula, 19 I. & N. Dec. 467 (BIA

1987), says the INS gave too much weight to the circumvention of

orderly refugee procedures. The criticism is misplaced -- this was

not the sole or even primary focus of the IJ.

-20-

evidence, however, of a pattern of kidnappings by Hezbollah in the

last decade, although kidnapping was widespread during the civil

war. But these Reports would not have straightened out the

inconsistencies in Albathani's own stories. 

On our review of the entire record, we do not find

evidence sufficient to compel reversal of the denial of Albathani's

asylum claim.5 He, a fortiori, fails to satisfy the standard for

withholding of deportation. See Velásquez, 2002 WL 31904478, at *4

n.2.

B. Due Process

Albathani raises before us a challenge he did not raise

in such terms before the BIA: a procedural due process challenge to

the IJ's conduct of his hearing. He alleges that the IJ improperly

berated the interpreter, rushed the hearing along, sharply crossexamined him, and refused to examine evidence of his beatings in

the form of scars. Respondent says that any due process claim is

waived. See Mendes v. INS, 197 F.3d 6, 12 (1st Cir. 1999)(holding

that petitioner "waived his due process claim by failing to raise

it at his deportation hearing, at his hearing for suspension of

deportation, or before the BIA"). We bypass the waiver question
-21-

because the claim is easily determined to be meritless, and because

he raised similar arguments, under a different label, to the BIA.

As an unadmitted alien present in the United States,

Albathani's due process rights are limited. See Kaplan v. Tod, 267

U.S. 228, 230 (1925) (presence in the country immaterial because

excluded alien "was still in theory of law at the boundary line and

had gained no foothold in the United States"). As a result, many

constitutional protections are unavailable to Albathani. See

Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see also Shaughnessy

v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) ("Whatever

the procedure authorized by Congress is, it is due process as far

as an alien denied entry is concerned.") (internal quotation

omitted). 

Moreover, even if Albathani were an admitted alien, the

problems he describes still would not rise to the level of a due

process violation. Albathani's real complaint is that he may have

been misunderstood and that his lack of credibility was simply a

function of bad interpreting. But there is nothing to suggest this

is so. At the hearing, neither Albathani nor his counsel

questioned the accuracy of the translation by the interpreter at

the IJ hearing. Even now, Albathani does not identify points in

the hearing where the translation was inaccurate or misleading.

The IJ was, at times, short in her treatment of the

interpreter, but may have had cause. "[O]rdinary efforts at
6 Although amici may not present legal theories not argued by

the parties, see Lane v. First Nat'l Bank of Boston, 871 F.2d 166,

175 (1st Cir. 1989)(an amicus may not "interject into a case issues

which the litigants, whatever their reasons might be, have chosen

to ignore"), we view amici in this case as presenting variations on

the arguments presented by Albathani.

-22-

courtroom administration" do not mean that the hearing was unfair,

even where the judge was "stern and short-tempered." Morales v.

INS, 208 F.3d 323, 327 (1st Cir. 2000). Similarly, the IJ's

attempts to expedite proceedings are "not the stuff of which a due

process violation can be fashioned." Aguilar-Solis, 168 F.3d at

569. Indeed, Albathani's own counsel sought to expedite the

hearing so that he could keep a scheduled court appearance that

afternoon. The IJ's cross-examination of Albathani is expressly

authorized by regulation. See 8 C.F.R. 208.9(c) ("The asylum

officer shall have authority to . . . question the applicant and

any witnesses."). Moreover, with regard to the scars, Albathani's

counsel chose not to request more time to submit photographs.

Albathani had a full and fair hearing.

IV.

Petitioner, supported by amici, challenges the BIA's

affirmance without opinion (AWO) procedure under which the IJ's

decision was upheld. Petitioner claims that AWO violates due

process; amici argue that it violates rules of administrative law.6

Both say there must be a more substantive statement of the reasons

for the BIA's decision. 
7 The September 25, 2002 amendment to the regulations

restructured this section. See 67 Fed. Reg. 54,878 (Aug. 26, 2002)

(to be codified at 8 C.F.R. § 3.1(e)(4)).

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The context of the claim is important. An alien has no

constitutional right to any administrative appeal at all.

Guentchev v. INS, 77 F.3d 1036, 1037 (7th Cir. 1996); see also

Abney v. United States, 431 U.S. 651, 656 (1977)(no constitutional

right to appeal in criminal cases). Nor has Congress given aliens

any statutory right to an administrative appeal. Such

administrative appeal rights as exist are created by regulations

promulgated by the Attorney General. See 8 C.F.R. § 3.1(b)(2002).

The Attorney General first adopted the AWO procedure at

issue in 1999. Rather than the usual three-member review, the

"affirmance without opinion" procedure allowed for review of a case

by a single member, who would affirm the IJ's decision with the

statement: "The Board affirms, without opinion, the result of the

decision below." 8 C.F.R. § 3.1(a)(7)(iii) (2002).7 The AWO

procedure was limited to certain categories of cases, designated by

the Chairman of the BIA, see id. at (7)(i). Once the case was

selected by the Chairman, one-member review was permissible where

the Board member found that the case fit certain criteria:

(ii) The single Board Member to whom a case is assigned

may 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
8 According to amici, the procedure was used sparingly until

early 2002. In February 2002, the Attorney General proposed new

rules that would, inter alia, increase the range of cases that

could be reviewed under AWO procedure, and reduce the Board from 23

members to 11 members. The intent of the new rules was to

eliminate the backlog of pending cases by reducing the amount of

time allotted to each one. Since these new rules did not go into

effect until September 2002, amici argue they had an immediate

impact by causing Board members who wished to retain their jobs to

hurry through as many AWO cases as possible. Albathani's case,

amici argue, was heard under the 1999 regulations, but as part of

a rush to meet new expectations. Nonetheless, this appeal only

concerns the 1999 regulations under which his case was decided.

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(A) the issue on appeal is squarely controlled by

existing Board or federal court precedent and does not

involve the application of precedent to a novel fact

situation; or

(B) the factual and legal questions raised on appeal are

so insubstantial that three-Member review is not

warranted.

(iii) If the Board Member determines that the decision

should be affirmed without opinion, the Board shall issue

an order that reads as follows: "The Board affirms,

without opinion, the result of the decision below. The

decision below is, therefore, the final agency

determination. See 8 CFR 3.1(a)(7)." An order affirming

without opinion, issued under authority of this

provision, shall not include further explanation or

reasoning. Such an order approves the result reached in

the decision below; it does not necessarily imply

approval of all of the reasoning of that decision, but

does signify the Board's conclusion that any errors in

the decision of the Immigration Judge or the Service were

harmless or nonmaterial.

Id. at (a)(7).8 A further provision provided for the single member

to return the case for full three-member consideration in the event

that he or she determined that it was not suitable for one-member

determination. Id. at (7)(iv).
9 It is possible that the outcome of increased use of summary

procedures will be to shift the backlog to the federal courts of

appeal. Indeed, the Ninth Circuit is already projecting a dramatic

three-fold increase in the number of immigration appeals since

2001. See L. Getter & J. Peterson, Speedier Rate of Deportation

Rulings Assailed, L.A. Times, Jan. 5, 2003, at A1. The highlyexpedited nature of the review may prompt even more appeals to the

courts. Still, as amici point out, many non-citizens are unable to

afford legal counsel and do not have pro bono counsel, and this may

chill their willingness to go to court.

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Promulgation of the AWO regulations is within the power

of the INS.9 "[A]dministrative 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." Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.

Council, Inc., 435 U.S. 519, 543 (1978). 

Petitioner and amici present two theories in their

challenge to the AWO procedure. The first is that the BIA decision

is the final decision and a BIA summary affirmance does not provide

a reasoned basis for review. The second is that a one-line summary

affirmance provides no way for courts to police the BIA to see that

it is actually doing its job according to the regulations it has

promulgated. Albathani and amici argue that the 1999 AWO procedure

violates a basic principle of administrative law: the requirement

that agencies provide reasoned bases for their decision. As

classically formulated in SEC v. Chenery Corp., 332 U.S. 194

(1946):

If the administrative action is to be tested by the basis

upon which it purports to rest, that basis must be set
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forth with such clarity as to be understandable. It will

not do for a court to be compelled to guess at the theory

underlying the agency's action; nor can a court be

expected to chisel that which must be precise from what

the agency has left vague and indecisive.

Id. at 196-97. But both overlook the plain language of Chenery,

which refers to agencies in their entirety, not individual

components of agencies. Here, the relevant agency -- the INS --

has presented a statement of reasons for its decision, albeit from

the IJ rather than the BIA. Chenery does not require that this

statement come from the BIA rather than the IJ.

The BIA can adopt, without further explication, the IJ's

opinion. See Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) ("[W]e join

eight of our sister circuits in ruling that the Board need not

write at length merely to repeat the IJ's findings of fact and his

reasons for denying the requested relief, but, rather, having given

individualized consideration to a particular case, may simply state

that it affirms the IJ's decision for the reasons set forth in that

decision.") (listing cases). 

The contention here is that the AWO procedure is

distinguishable from Chen because it permits affirmance without

opinion even when the BIA disagrees with the IJ's reasoning. The

AWO regulation does indeed allow such an affirmance. Because the

summary affirmance is only of the "result" and not the reasoning,

this means that courts of appeals are forced to review a decision

which may or may not contain the reasoning of the BIA. The court
-27-

thus reviews the BIA decision without knowing its basis. The

summary affirmance scheme does create these problems, but they do

not render the scheme a violation of due process or render judicial

review impossible. Nor does the scheme violate any statute. 

The courts will continue to have the IJ's decision and

the record upon which it is based available for review. See also

8 U.S.C. § 1252(b)(4)(A) ("[T]he court of Appeals shall decide the

petition only on the administrative record on which the order of

removal is based."). This permits a court to carry out an

intelligent review. 

In functional terms, if the BIA does not independently

state a correct ground for affirmance in a case in which the

reasoning proffered by the IJ is faulty, the BIA risks reversal on

appeal. One of the several justifications for Chenery's

requirement for explicit reasons derives from a limitation on the

courts' ability to substitute different grounds. "[A] reviewing

court . . . must judge the propriety of such action solely by the

grounds invoked by the agency. If those grounds are inadequate or

improper, the court is powerless to affirm the administrative

action by substituting what it considers to be a more adequate or

proper basis." Chenery, 332 U.S. at 196; see also Fed. Power

Comm'n v. Texaco, Inc., 417 U.S. 380, 397 (1974) ("[A]n agency's

order must be upheld, if at all, on the same basis articulated in
10 Albathani argues that this very rule proves his point --

the court should know the true reasons for the BIA's action. Our

answer above applies to this as well.

-28-

the order by the agency itself.").10 In short, if the BIA

identifies an alternative satisfactory ground for upholding denial

of asylum in a case with an otherwise unsatisfactory decision by

the IJ, it must state it or risk remand. Ordinarily, the case will

be remanded to the agency, and the agency will not, in the end,

have saved any time or effort.

The more serious argument is that the very nature of the

one-line summary affirmance may mean that BIA members are not in

fact engaged in the review required by regulation and courts will

not be able to tell. Immigration decisions, especially in asylum

cases, may have life or death consequences, and so the costs of

error are very high. Amici point out that this fear is not

abstract in light of the huge caseload faced by only 19 BIA

members. For example, the Board member who denied Albathani's

appeal is recorded as having decided over 50 cases on October 31,

2002, a rate of one every ten minutes over the course of a ninehour day. See L. Getter & J. Peterson, Speedier Rate of

Deportation Rulings Assailed, L.A. Times, Jan. 5, 2003, at A1. 

In fact, it has taken us considerably longer than one day

to review this case, and the record of the hearing itself could not

be reviewed in ten minutes. In general, even when the IJ decides

the alien is not credible, there must be review of the record
-29-

before the IJ by the BIA. The BIA itself has, on review of the

record, rejected lack of credibility determinations by the IJ.

Further, as we noted in Gailius, 147 F.3d at 47, there must be

reasons for disbelief of uncontradicted testimony. But our review

here confirms that if there were any deviation from what the

regulations required of the single BIA member (and there is no

reason to think there is any), then the error would be harmless.

There was a basis for affirmance and for summary affirmance.

Were there evidence of systemic violation by the BIA of

its regulations, this would be a different case. We would then

have to face, inter alia, the INS's claim that the decision to

streamline an immigration appeal is not reviewable by the courts

because these are matters committed to agency discretion. But see

Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (presumption of

reviewability of agency actions), abrogated in part by Califano v.

Sanders, 430 U.S. 99, 105 (1977) (holding that the APA is not to be

interpreted as an implied grant of subject-matter jurisdiction over

agency decisions); Goncalves v. Reno, 144 F.3d 110, 127 (1st Cir.

1998), cert. denied, 526 U.S. 1004 (1999) (upholding judiciary's

role in determining whether an agency's interpretation of a statute

is permissible); cf. Saakian v. INS, 252 F.3d 21, 25-27 (1st Cir.

2001)(remanding case where BIA failed to apply its own rules). We

are not willing, however, in the absence of such evidence, to infer

from these numbers alone that the required review is not taking
-30-

place. Courts themselves use "summary affirmance" or "summary

disposition" procedures in which parties may receive one-line

dispositions of their appeals. See, e.g., 1st Cir. R. 27.1. These

are workload management devices that acknowledge the reality of

high caseloads. They do not, either alone or in combination with

caseload statistics, establish that the required review is not

taking place. 

For these reasons, the challenges to the AWO procedure

are rejected.

V.

The decision of the BIA is affirmed.