* The Honorabl e Karen Ca ldwel l, Unit ed Sta tes Dist ric t Ju dge f

or the Eastern District

of Kentucky, sit

ting by designation.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0432P (6th C ir.) File Name: 03a04 32p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

S VITL ANA D ENKO , Petitione r,

v.

I MMIGRATI ON AND N ATURALI ZATI ON S ERVICE ,

Responde nt. X - - - -

> , - - - - N No. 02-3746

On Appea

l from the Board o f Imm

igration Appeal s. No. A76 853 968.
Argued: July 29, 2003

Decided and Filed: December 8, 2003

Befor e: DAUGH TREY and M OORE, Circ uit Judges ; CALDWELL , District Judge. *

_________________ COUNSEL

ARGUED: Dav id W. Leopold, Cleveland, Ohio, for Petition er. Greg D. M ack, UNITED STATE S 2 Denko v . INS No. 02-3746

DEPARTMENT OF JUSTICE, Washington, D.C., for Responde nt. ON BRI EF: David W. Leopold, C leveland, Ohio, for Petitioner. Greg D. Mack, Emily A. Radford, UNITED STATES DEPARTMEN T OF JUST ICE
, Washington, D.C., for

Resp onden t. Nadine K. Wettstein, AMERICAN

IMMI GRATI O N LAW FOUNDATI ON, Washington, D.C., for Amicus Curiae.

_________________ OPINION

_________________ KAR EN NE LSON MOORE, Circuit Judge. Petitioner SvitlanaDenko (“Denko”) appeals the dec ision of the Board of Immigration

Appeals (“BI A” or “B oard”)to affirm without

o pinion the I

mmigrat ion Judge’ s (“IJ”) order of remo va l againstDenko and its decision to deny D enk o’s m otion to rescind the in absenti

a order of removal. Denko makes two argume nts on appeal. First, Denko argue s that it wa s an abuse of discret ion f

or the IJ not t o reop en remo val pr oceedi ngs when Denko introduced evidence that her failure to attend her second master-calendar hearing

resulted from her attorney ’s ineffective assistance of

counsel and not

from any de cision on Denko’s part to abando n her request for asy lum. Second, Denko argue s th at th e regulation permitting the Boar d summarily

to affirm without opinion the IJ’s decision, 8 C.F.R. § 10 03. 1(a)(7), violates established administrative l awbecause it is inconsistent with other provisions of t h e Immigration

and Nationa lit y Act (“I

NA”) and violates the Due Process C lauseof the United Sta tes Constitu

tion beca use it fails to produce a separate BI A decision for the court of appeals to review. We AFFIRM the judgment

of t he IJ and uphold 8 C.F.R. § 1 003. 1(a)(7)’s summary-affirmancewithout-opinion rule as both con stitutional and consistent with admin

istrative -law pre cedent.No. 02-3746 Denko v . INS 3

1 Responde nt sugge sts that D enko did no t app ly for asylu m unt il on or about March 27, 1998.

I. BACKGROUND

Denko came to th

is countr y a s a lawful nonimmigrant vis itor on April 25, 1993, from her native homeland i n Ukraine. Her authorization permitted her to stay for no longer thansix months. Denko remai ned i n this coun try well past her six-month autho rization, and it was not until March 3, 1998, 1 nearly f

ive years after Denko first entered, t hat she filed an affirmative request for asy lum ba se d on religious persecution. Denko is Jewish and claims that, while living in Ukraine, she was persecuted by local Ukr

ainian na tionalists

. Denko states that she attempted to secure protection from local gove rnm ent age

ncies in U

kraine b ut that none would assist her. She cites as specific examples of persecution, the follo wing: large

fines we re fra udulently impose d on her businessby

anti-Semitic local officials, she was harassed and received threats of violence from local police, a nd she w as victimi z ed

and bea ten by members o f the Ukr

ainian Se lf De fe ns e, a m il it ar y un it of th e U kr ai ni an Na ti on al Ar my.

After Denko’s request for

asylum, the I

NS served

Denko on January 27, 1999 , with a notice to appear (“NTA”) to show

c auseas to why she did not leave the United States on o r before her six-month permission expired. The NTA ordered Denko to appear before the I J on October 29, 1999 , and,

acco rding t o t he IN S, in clu ded a wa rni ng w hi ch s tat ed: “If you fail to attend the hearing

at the time and place designated inthis notice, or any date and time later directe d by the Imm igration Court , a removal order may be made by

th e immigration

judge in your

absence, and y

ou may be ar

rested and detained by

the INS.” Appellee’s B r. at 5.

At this October initial hear in g, Denko was represented by her attorney, Nic oleta Wojnar (“Wojnar”). Denko admitted t o the factual allegations aga inst her and that she wa s 4 Denko v . INS No. 02-3746

2 Denko’ s brief m isquo tes this letter in a significant w ay: she o mits the key phrase “if

you so desire.” Appellant’ s Br. at 4. O mission of this criti cal phrase distort s the meaning of t he letter

. removab le pursuant to the INA. D ur in g th is hea rin g, t he IJ advised Denko of the consequences of her f ailure to appear at the scheduled second master-calendar hearing set for A pril 7, 2000. Inaddition, the order issued on October 29 contained a written warning that Denko must appear on A pril 7, 2000:

Failure to appear at y

our hearing except for

exceptional circumstances may

result inone or more of the following acti ons: (1) You may be take n into custody by

the Immigration

and Naturalization Service and held for further ac ti on [, ] O R ( 2) Yo ur he ar in g m ay be held in your absence under

section 240(b)(5) of the Immigration and Nationality Act. An order of remov al will

be entered againstyou if the I

mmigration and Nat

uralizati on Service establishe d by clear, unequivocal and convincing evidence that a) you or

your attorney

has been provided this notice and b) you ar

e removable.

Joint Appendix (“J.A.”) at 32 (Not. of Hr’g in Rem ova l Proceedings). Another reminder cam e almo st four months before the second master-calendar hea ring, when Denko receiv ed a let ter fro m Woj nar st ating:

If you w ould

like we could request a Motion to the Judge so you

do not ha ve to be present on April 07, 2000, in whichcase I

will be there representing y ou . . . .

Please let o ur office know if this is something y ou would like to consider

and althoug h we have the rig ht to request it fro m the J udge, t he Ju dge does not necessa rily have to grant

it. However, for y

our conv enience

we will attempt to do so if you so desire.

J.A. at 30. 2 It is the wordin g of this letter that forms the basis for Den ko’s asse rtion of ineffective assistance of counsel.No. 02-3746 Denko v . INS 5

3 As requ ired b y In re Lozada , 19 I. & N. Dec. 637 (BIA 19 88), Denko simultaneousl y fil ed a grievance against Wojna r with the Cleveland Bar Association. The Ohio Disciplinary Counsel dismissed the grievance, stat ing t

hat Wojnar adequately communicated with Denko and sought to keep her

abreast of th e detai ls i n her i mmigrat ion case

. Denko, noting that English is not her native languag e, argues that she in

terprete d Wo

jnar’ s letter to mean that Denko’s presence wa s n ot required at the master-calendar hearin g. Moreover, Denko claims that Wojnar informed her that Wojnar would seek a

motion to waive a

ppeara nce. As a result of Wojnar ’s letter, Denko f ailed toatt end her second master-calendar

hearing on April 7, 2000. Co ns eq ue nt ly, the hearing was conducted in absenti

a pursuant to § 240(b)(5)(A) of the INA. Bec ause a waiver of Denko’s personal appearancewas never requested, the I J ordered Denko

r emove d to Ukraine. The IJ concluded that no spec ial circumstances were present to justify Denko’s absence from the he aring.

OnJune 22, 2000, af

ter retaining new counsel, Denko moved to reopen her removal proce edings based on ineffective assistanc e of coun sel. 3 Denko claimed in her accompan

ying affidavit that she misunderstood the mixed signals co ntained in Wojnar’s letter. Additionally, Denko argued that Wojnar never informed her of Denko’ s required presence and never sought the waiver t hat Wojnar

agree d to seek in the letter. As evidence of Wojn ar’s ine ffectiv eness, Denko pointed out that the INA requires the a lien’s presence at the master-calen dar hearing except in a few special circumst ances, none of which was presen t in Denko’s case. OnAugust 3, 2000, the IJ d enied Denko ’s mot ion. The ju dge

reasone d that:

A part from [Wojnar’s] letter the Respondent ha s no t offered any additional evidenc e to indicate that there was
anagreement to submit a Motion to Waive Appearance

nor has the Respondent indicated any thing further in her affida vit to support the existence of the “agreement.” A 6 Denko v . INS No. 02-3746

plain reading of the letter indicates that Res pondent’s prior counsel was mere ly e

xtendin g an off

er to file the mot ion. It does not rise to the level of an ag reement withoutevidence to indicate that the offer was accepted. There was no evidence of a letter, telephone ca ll, or any other form o f com munication that would indicate the Respondent

ac cepte d the off

er and ha

d a reas onable expectation that it would be filed.

J.A. at 22 (Decision

& Or. of I.J.). Additionally, the IJ noted that eve n if Wojnar

agree d to file the motion and then failed to perfor m, Denko had a duty

to follow up because Wojnar’s letter made clear that the IJ haddiscretionto grant or deny the motion. The IJ thus held that the in absenti a order of removal was proper.

Denko timely

file d a notice of appeal to the Board on August 29, 2000. Denko argued that the I J’s decision was an abuseof discretion

because it relied on

Wojnar’s ambiguous letter to show that Denko was awareo f the consequences of her failure to appear. Ac co rding to Denko, be cause E

nglish is not her na

tive tong ue and be cause Woj nar’s c onfusing letter negate d the IJ’s prior w arning s, the motion t o reopen should have been granted

because Denko’s failure to appear was the result of Wojnar’s ineffe ctiveness as counsel. On June 5, 2002, the Boa

rd, using th e ne wly enacted streamlining procedu res, affirme d the IJ’s order w ithout issu

ing an opinion. Denko now

seeks re view in thi s court , where she challenges the BIA’s af

firmance of the IJ’s order of removal and the BI A’s use o f the af

fir ma nce-without-opinion procedure.

II. ANALY SIS

A. Denial of the M otion to Rescind the In Absentia Order of Removal

Denko asserts that the IJ abused her discre tion when she denied Denko’s motion to re open th e or der of r emoval.No. 02-3746 Denko v . INS 7

Denko argued in that motion, and argues her e on appea

l, that Wojnar’s assistance was ineffe ctive be cause Woj nar fai led to make clear D enko’s r

esponsibi lity

for appearing at the

second hearing on Apri l 7 , 20 00. In De nko ’s e st im ati on, th e IJ abused her discretionwhen she failed to give adequate weight to Denko’s

affida vit and supporting evidence that Denko was misinformed

and would have reacted differe ntly had she been given the proper information.

The denial of

a motion to r

eopen or reconsi de r a removal order is reviewed for a

n abuse of discretion. INS v. Doherty
, 502 U.S. 314, 324 (19 92 ). An abuse of discretion can be shownwhe n t he IJ or Board offersno “rational explanation, inexplicab ly

depart[s] fromestablished polici es, or re st[s] on
animpermissible basis such as invi diou s discrimination againsta particular race or g roup.” Bala ni v. INS

, 669 F.2d 1157, 1161 (6th Cir. 1982). When the BIA adopts the reasoning of the I

J, we review the IJ’s decision to determine whether th e BIA abusedits discretion. Kegode v . Ashcroft
, No. 01-3865, 2003 WL 1949609, at *2 (6th Cir. Apr il 22, 2003) (unpublished). When the BIA issues an order pursuant to 8 C.F.R. § 1003.1(a)(7), aff irming the result of the IJ’s decisionbutnot ne cessarily a dopting the IJ’s reasoning, the only “rational explanation” is that of the IJ; thus here we review the IJ’s decision for an abus e of discretion, a s is discussed more fully in Part I I.B. infra.

An in absenti

a order issued pursuant

to § 240(b)(5) of the INA can be r escinde d if

the alien can

show that she faile d to appear because: (1) she was in cust ody and her f

ailure to appear was not her fault; (2) she never rece ived notice of the procee dings; or

(3) she had other

exceptional circu

mstance s. 8 C.F.R. § 1003.23 (b)(4)( iii). See also8 U.S.C. § 122 9a (b)(5) (C). I

n Denko’ s case, b ecause

she was not in custody and most c ertainly

receiv ed multiple

forms of notice, the order can be rescinded only

if the motion to reopen shows that there were exceptional circumstances causing her fa ilure to appear. 8 U.S.C. § 1229a(b)(5)(C)(i). Section 1229a(e)(1) describes exceptional circumstances as matters “beyond the 8 Denko v . INS No. 02-3746

control of the alien,” including “serious illness of the alien or serious illness or d eath of the spouse, child, or parent of the alien, but not inc luding less compelling circumstances.” 8 U.S.C. § 1229a(e)( 1). An IJ considers the totality of the circumstances when

making a determination that exceptional circumstances exist. See In re J-P- , 22 I. & N . De c. 3 3 (B IA 1998); see also H.R. Conf. Rep . No. 101-955, at 119, 132 (1990), reprinted in 1990 U.S.C.C.A.N . 6784 , 6797 (noting that “the conferees expe ct th at in determining whether an alien’s failure

to appear was justifiable the Attorney General will look at the

totality of the ci rcums ta nces to determine whether the alien could not reasonably ha

ve been expected

to appear”). Thus, the

question t

hat we must addres s is whether it was an abuse of discretion for the IJ to determine that Denko’s claims of ineffective assistance of counsel wer e insufficient to constitute an exceptional circumstance.

Becau se “[a] depor

tation pro ceeding

is a pure ly c ivil action,” INS v. Lope

z-Mendo za , 468 U.S. 1032, 1038 (1984),

anin effe ctive assistance of counsel claim is reviewed under the Due Proc ess Clause

of th e Fi fth Amendment rather than under the Sixth Amendment. “Fifth Amendment guarantees of due proc ess extend

to aliens i

n deporta tion proc eeding s, entitling them to a full and fair hearing.” Huicochea-Gomez

v. INS, 237 F.3d 696, 699 (6th Cir. 2001). Ineffe ctive assistance of counse l in a deportation pr oceedin g will ri se to the leve l of a due-pro cess viol ation unde r the Fif

th Amen dment

“only if the pro ceeding

was so fu

ndamenta ll y unfair that the a

lien was prevente d from re asonably presentinghis case.” Ramirez- Durazo v. INS

, 794 F.2d 491, 499-500 (9th Cir. 1 986) (quotation omit ted); see also Taniguchi v. Schult

z , 303 F.3d 950, 958 (9th

Cir. 2002) (“To show ineffective assistance of counsel, a pa rt y must demonstr ate that the actions of his/her att orney resulted in prejudice to the party. A par ty must prove prejudic e by

a lleging facts that permit the court to infer that competent counsel would have act ed ot herwise.” (citations omitted)). The alien w ill suc ceed if he meets his burden of showing

mor e than “mere[] ineffective assistance of counsel, butNo. 02-3746 Denko v . INS 9

assistance which is so ineffective as to ha ve impinged upon the fundame

ntal fair nes s of the hearing in violation of the fifth amendment due process clause.” Ramirez- Durazo
, 794 F.2d at 500 (quotationomitted); see also Huicochea-Gomez
, 237 F.3d at 699 (“The alien carries the burden of establishing that ineffe ctive as si stance of c ounsel prejudiced him or denied him fundamental fairness in order to prov e thathe has suffered a denial of due proce ss.”).

The IJ dete

rmined tha

t Denko di d not rec eiv e ineffective assistance o f cou nsel because Wojnar’s letter could not be interpre ted to for m an agr eement that Wojnar would requ est a waiver of Denko’s appeara nce. At best, Wojnar’s letter to Denko could be i

nterpre te d as ex tending an offer to file a waiver motion. Ac cording

to the IJ, Denko offered no other evidence of an agreeme nt between herself and Wojnar. Moreover, the IJ noted that e ven as suming that the letter could be inter preted t o constitu

te an agreement, the letter clearly stated that the IJ had

discreti on to gra

nt or ref use any reque st, an d thus Den

ko should have foll owed up with Wojnar to determine the status of her required attendance a t the hea ring. T he I J noted t hat at the initial scheduling hearin g, Denko was warned of the consequences of her failure to appear at any future

scheduling hearing

both verbally and in wri ting.

The IJ’s determination that Wojnar’s actions were insufficient

to constitute an excep ti onal circumstance explaining Denko’s

absence , and thus d

id not violate Denko’s due-pro cess rig ht s, w as n ot an a bus e of di scr eti on. The IJ provided a “rational explanation” f or her c onclusi ons that Denko had suff

icient no tice of the conseq uences f or failur e to attend her hea ring a nd th at the allegations against Wojnar

w ere insufficient to establish ineffective a ssistance of counsel

. Balani
, 669 F.2d at 1161. In addition, Denko was not e ntitled to relief on her alleged in effective-ass istance -of-co unsel clai m because she faile d to show how her libe rty inte rest wa s violated. Huicoche a-Gomez , 237 F.3d at 699. De

nko is unable to show the necessary

“prejudice” or “funda

me ntal 10 Denko v . INS No. 02-3746

unfairness” because

she cann

ot esta bli sh that “but for [Wojnar’s] legal a

dvice, [she] would

have been en

titled to continue residi n g in the United States.” Id. at 699-700 (noting that “[t]he

failure to be gr anted dis c retion ary re lief does not amount

to a depr ivation of a lib erty inte res t”) . In fact, Denko merely

asserts that if she had no t relied on Wojnar’s allege dly

confusin g lette r, she wo uld have appeared at her scheduled hearing and

an order in abstent

ia would not have been enter e d against her. While this may ve ry well be accurate, this is not equivalent to a showing that if Den k o attended the hearing

she would

have been granted the asy lum she sought. The l ac k of fundamental unfairness becomes

even more clear w

hen we consider that Denko neither contests the illegal nature of her presence in the U.S. nor he r de po rt ab il it y. In add ition, Den ko faile d to alleg e any

facts that tend to show that a competent lawy er would have behaved differently tha

nWojnar. See Taniguchi , 303 F.3d at 958 (noting that prejudice can be estab lis hed throu gh facts tending to sho w that a competent lawy er would have acted differently)

. Denko’s suggestion that because her a ff idavit sta tes that she

was confused

by Wojnar’s letter the I

J was obligated

to find that Denko suffered ineffective a ssistance of cou ns el is not compe llin g. Wojnar’s letter r eiter ated that Denko’s hearing

was scheduled for April 7, 2000, and provided Denko an opportuni ty to seek to avoid her required attendance at the hearin g. Howeve

r, the la nguag e used in t

he letter clearly indicated that a motion to waive appearance could be f iled at Denko’s re q uest , and Denko presented no evidence of a ny suchrequest made to Wojnar. Al thou gh Denko argues that her language barrie

r prohibited her from understanding the precise language in the letter, she makes no argument

that she did not understand the IJ’s verbal and written warning s at the initial hearing . Moreove r, it was D enko’s r

esponsibi lity

to understand

the conte

nts of a le

tt er which, un

der a pla in readin g, only can be inter pre ted as an offer to file a motion with the immig

ration c ourt. Because Denko failed to heed the prior warnings regarding

attendance and neglected to confirmNo. 02-3746 Denko v . INS 11

4 Sec tion 10 03.1 (a)(7 ) states, in re levant p art: The Cha irman may d esigna te, from ti me -to-t ime, permanent Board Members who are a uthori zed, acting alone, t o affirm decisions of Immigration Judges and the Serv ice wi thout opinion.

. . . The s ing le Boar d Member to wh om a case is assi gned may aff

irm the d ecis ion of the Service or the Immig rat ion Judg e, wit ho ut opini on, if the Board Member determin es that t

he result r eached in the decisi on under revi ew

was correct; tha t any errors in the decis ion under review were harmles s or nonmate rial ; and t hat (A) The i ssu e on appea l i s squ arel y cont roll ed by existi ng Board o r federal courtprecedent and does her own understan ding of Wojnar’s letter, we cannot conclude that Denk o suffer ed funda mental unfairne ss.

In sum, while Denko has shown that her failure to app ea r at he r hearing precipitated the in absentia order against he r , Denko has failed to meet her burden to show fundamental unfairness or prejudice arising from Wojna r’s conduct. See Huico ch ea-Gomez
, 237 F.3d a t 699; Ramirez-

Durazo , 794 F.2d at 499-500. B ecause Denko failed to establish an except io nal circumstance through a showing of ineffective assistance of counse l, the IJ did not abus e her dis cretion in denying Denko’s motion to rescind the in absenti a order of removal
, and

the BIA did not abuse its discretion in affirming the IJ’s conclu sions.
B. Summary-Affirmance-Without-Opinion Procedure

Onappeal to the Board, Denko challenge d the IJ’s denial of her motion to rescind

the in absenti

a order of removal based

onDenko’s

failure to establi s h exceptional circu mstance s. The Board, using the summary -affirmance-without-opinion pr ocedure (also referred to as the streamlining pr ocedure), agreed with the IJ’s result. Now

onappeal, Denko challenges the st reamlining proc edure’ s complian ce with th e requirements o f due process and established administrativelawprecedent. Denko makes two broad arguments for striking down 8 C.F.R. § 1003.1(a)(7). 4 First, Denko as serts 12 Denko v . INS No. 02-3746

not involve the appli cati on of precedent to a novel fact si tuation; or (B) The factua l and legal questi ons rai sed on appeal

are so insubstant ial t hat three -M emb er rev iew is
not w arra nted.

. . . An order aff

irmi ng wi thou t opi nion , i ssu ed under aut hori ty of this provi sion , s hall

not i nclu de fur

ther expl anat ion or

reasoning. Such an or der a ppr ove s the resu lt reach ed in the deci sion below; it does not

neces sari ly impl y appr oval of al l of the reas onin g of that decisi on, but does signif y the Board’s conclusion that any

errors in the de cision o f the Imm igration Judg e or th e Servi ce

were harm less or n onm aterial. 8 C.F.R. § 100 3.1(a)(7). that § 1003.1( a)(7) violates c ongre ssional int ent embod

ied in the INA , becau se Congr ess in te nded to enact greater proceduralprotections in administ rative hearing s for alie

ns. Ac cordingto Denko, the administrative-law scheme wa s designed so that al iens woul d have two de novo reviews of their claims wit

hin the ad ministrati ve sy stem, one

with th e IJ and another with the BIA. In Denko’s estimation, § 1003.1(a

)(7)’s l icense t

o member s o f the Board to issue summary affirma nces w ithou t opinions renders de novo review by t he BI A impossib le. De nko also asserts that § 1003.1(a)(7) contradicts other I NA provision s which pe

rmit appeals only from final orde

rs. Denko argues that

because the BIA did notindependently re nder a decision, there is no final agency order for this court to review.
Second, Denko asserts a Du e Proc ess Clause violation i

n that the reg ulation a llows the BIA to issue a summary

a ff irmance without also issuing a separate opinion. According

to Denko, because the BIA does not issue its own opinion, Denko has a diminished opportuni ty t o receive a “full and fair judicial review ” of the final agency order. Appellant’s Br. at 7. Denko argues that the Supreme Court ha s noted t hat in order for a court to review an a gency ’s action, the action mu st be cle arly stated be cause “ [i]t will not do for a co

urt to be c ompelled

to guess at the t heoryNo. 02-3746 Denko v . INS 13

5 Th is argumen t is also the heart of t he Amicus Curi ae’s ( herein afte r “AmericanImmigr ati on Law Foundation”) brief. Both Denko and the American Immigrat ion Law Foundation agree that the fail ure of the Board
to issue an opinion makes it impossible for a revi ewing court to determine whether De n ko receive d any pro cess as required by the Due Proc ess Clause. A summary affi rmance does not indicate which of the[ ] alte rnati ves [in § 1003.1(a)(7 )] was app lied to th e case . It is
equ ally impossible to determine how the cr it eri a were anal yzed: what precedent was considered; why the f acts were found not to be novel; what f

actual and legal questions were considered; and the standard for det ermini ng wheth er quest ions r aised on appeal

were “so insubs tantial ” th at t hree- Member revi ew is not

warr ante d. Amicus Br. at

13. underlying

the age ncy ’s action ; nor can

a court b e expecte d to chisel that which must be precise from wha t the agency

has left vague and indecisive.” SEC v. Chenery Corp. , 332 U.S. 194, 196-97 (1947). Denko cites a Ninth Circuit case for the p roposition that wher

e the Bo ard fai ls to offe r a rea so ne d explanation
, t he reviewing court must set aside the Boa rd’s decision. See Tukhowinich v. INS, 64 F.3d 460, 464 (9th Cir. 19 95). The main problem with the summary a ffirmance process , accord

ing to Denko, is that

the basis for the Board’s affirmance is concealed from our rev ie w by the explici

t command of the regulation. Denko a sserts tha t this concealment mak es the summary-a f firmanc e-withou

t-opinio n procedu re viola te due pr ocess. 5

“I tis well es tablished

that the F ifth Amen

dment ent

itl e s aliens to due process of law in deportation proceeding s.” Reno v. Flores , 507 U. S. 292 , 306 (1993). As an initial matter, aliens who have entere d the Unite d States, b oth law full y and unlawfully, ca

nnot be “expelled” without the government

following established proceduresconsiste nt with the requirements of due process. Sh aughn essy v. United States ex rel. Mezei
, 345 U.S. 206, 212 (1953). We review de

novo claims of

due-pro cess viol ations in d eporta ti on procee dings. Huicochea-Gomez , 237 F.3d at 699. When the 14 Denko v . INS No. 02-3746

6 As noted by the American Immigration Law Found ation, the most
recent revision s to the re gulation s man date sing le-member r eview as the standard pro ced ure for app eals. N ow a three-m emb er pa nel on app eal is
ap pro priate only when the BIA needs to establish precedent, the BIA needs to settle differen ces am ong I Js, the ca se is of nat ional importance
, the IJ’s d ecision is not in co nform ity with the l aw, the IJ m akes a clearly

erroneous factual det ermination, or t he Board nee ds to reve rse t he IJ’s decision. 8 C.F.R. § 1003.1(e)(6). Board adopts the decision of theIJ in lieu of issuing its own opinion, we r

evi ew t he I J’ s de cision as the final agency decision. Alaelua v

. INS , 45 F.3d 1379, 1382 (9th Cir. 1995).

At the time Denko appe aled to the Board, the Board’s general policy was to si t i n t hre e-m emb er p ane ls to rev iew IJ decisions on appea

l. 6 Under § 1003.1( a )(7), adopted by the Department

of Justi ce (“DO J”) in 1999, a single Board member is authorized to issue a deci s ion affirming an IJ’s decisionwithout stating the basis for such aff irmanc e. This affirmance im pl ies th at t he IJ de ci de d t he ca se co rr ec tl y, any errors committed

by the I J were immaterial or harmless, and either the issue is squarely c ontrolled by prec edent and does notinvolve a novel factualissue or the factual and legal issues rais edon appeal are too insubstantial to warrant a threemember review. 8 C.F.R. § 1003.1(a)(7). I f an appeal from a decision of

the IJ meets the regulation’s cr iteria, the Board issues an orde r containing the following statement: “The Bo ard a ffirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination.” Id. at § 1003.1(a)(7 )(iii). If an appea l does notmeet the criter ia co ntained in § 1003.1(a)(7), a threeme mber panel of the BIA must review the petition. Id. at § 1003.1(a)(7)(iv).

Section1003.1(a)(7) specific ally indicate s that a

summary affirmance “does no t necess arily imply approval of all of the

r easoning of the [affirmed ] decision.” Id. a t § 1003.1(a)(7)(iii). In thecomments to the proposed rule, theNo. 02-3746 Denko v . INS 15

7 28,000 a ppeals in 1998 w as a dr amati c in creas e fr om the 3,000 app eals handled by the BIA in 1984 . In 2002, the nu mber of ap pea ls to the BIA reach ed 3 4,00 0. Ca rriche v. Ash croft , 335 F.3d 100 9, 10 12 ( 9th Cir. 2003) ( cit ing Execut ive Off ice f or Immigration Review , Statist ical Year Book: 20 02, a t 49, fi g. 23, av aila ble a t http:/ /www.usdoj.gov/eoir/s tatspub/fy 02syb.pdf). DOJ identified the impetus be hind p ermitting a summary affirmance by

a single Board Member:

To operate effectively

in an e nv ironment where over 28,000 appeals and motions a re filed ye arly, the B oard must have disc

retion ov er the me

thods by which it handles its cases . The pro cess of s creeni ng, ass ignin g , tracki ng, drafting , revisin g, and c irculati

ng cas es is extremely time consu

ming. Ev en in rout

ine case s in whichall Panel

Members

agree th at the result reached bel o w was correct, disagree ments concerning the rationa le or style of a dra ft decision can require significant ti me to resolve. The Department has determined

that the Board’s resourcesare better spent on

cases where thereis a rea sonable p ossibility of reve rsible error in the result reached below.

Executive Office for I mmigration Review; Board of Immigration

Appeals: Streamlining, 64 Fed. Reg. 56135, 56137 (Oct. 18, 1999) (hereinafter “Strea mlining”). 7 To remedy the probl ems resu

lting fr om the dra

matic increase i

n appeals
, the Atto r ney Gene ral sought to implement a new streamlined

appellate review system because “in a significant number of appea ls and motions filed w

ith the Board, a

single appella te adjudica

to r can reliably

determine that the

result reached by the adjud icator b elow is correct a

nd should not be changed on appeal.” Id. at 56135. By expressly

prohibiting t he s ingle Board member from including his or her own explanation or reas ons within the order, the regulation further alleviates the burden on the Board. 16 Denko v . INS No. 02-3746

8 In Carri che , th e Ninth Ci rcuit noted that ali en petiti oners “have unde rstand able concerns about the streamli ning process” including “the lack of transparency i n the process, the increasing frequency i n which the
proce ss is i nvoked, t

he speed wit

h which appeals ar e decided, an d a belief that the BIA may be abdicating its statutorily-ma nda ted ro le of ap pellate review. ” Carri che , 335 F. 3d at 1013. Inresponse to De n ko’s first argument 8 — that § 1003.1( a)(7) is

inconsistent with administrative law — we note that the cases she cites stand for the proposition that the BIA has the power

to conduct reviews de novo, not thatit is

r equired to do so. See Abdu lai v. Ashc roft , 239 F.3d 542
, 548-49 (3d Cir. 20 01) (“B ecause an alien facing removal may appeal to the BIA a s o f right, and because the BI A has the power to conduct a de novo review of IJ decisions, there is no ‘fi nal order’ until the B IA a cts.”); Castillo v. INS, 9 51 F.2 d 1117, 1120-21 (9th Cir. 1991) (“The BI A has the po we r to conduct a de novo review of

the re cord, to make its own finding s, and to determ in e independently the sufficiency

of the evidence.”). While deliberate action from the BI A may be

neces sa ry, Denko’s suggestion that a summary affirmance withoutopinion is not a

final order is directly

contradicted by the terms of

the reg ulation wh

ich indic ate that the IJ’s opinion becomes the final agency determination subject to review. 8 C.F.R. § 1003.1(a)( 7)(i ii) (“The Board affirms, without opinion, the results of the decision below. The decision below is, therefore, the final age ncy deter mination.”).

Co urt s have consistently allowed t

he I J’s decision to become the fina l a gency determination subject to review when the Board has adopted the I J’s findings or

has deferred to the IJ’s decision. See G u entchev v. INS , 77 F.3d 1036, 1038 (7th Cir. 1996) (“To adopt someone else’s re asoned explanation is to give r

easons.” ); Abdulai , 239 F.3d at 54 9 n.2; Chen v. I

NS , 87 F.3d 5, 8 (1st Cir. 1996). The Third Circuit in Abdulai noted that

there a re occa sions whe

re “as a matter of logic” the courts of appeals ar e reviewing effectively

the IJs’ decisions, such

a s when the

BIA affirms

onthe basis of the IJ’s opinion. Abdulai , 239 F.3d at 549 n.2.No. 02-3746 Denko v . INS 17

Moreover, Tukhowinich expressly states that the BIA has the authority to rely on an I

J’s opinion that provides the required

reason ing. See Tukhowinich
, 64 F.3d a t 463. All of

these decision s, however, require that the BIA give the IJ’s findi ngs “individualizedconsideration.” See, e.g.
, Chen , 87 F.3d at 8. Whenthe BIA does not per formits duty to “review the record and assess the IJ’s conclusions ,” t he BIA abuse s its own discretion. Tukhowi

nich
, 64 F.3d a

t 463. Thus , we must

a ddressDenko’s

argume nt that the

summary

affirma nc e procedure enables BIA me mbers to give less tha

n full

cons id eration

to the I J decisions t

hey review. The Fir st Circuit previous ly has addre ssed this a rgumen t and c oncluded that a challenge to thesummary affirmance procedure c annot stand when t he only evidenc e that the summary a ffirmance procedure causes the BI A to disregard its review responsibilities is the nature of the procedure itself combined with statistics indicatin

g that t hor ough review would be difficul t. See Alba thani v. I

NS , 318 F.3d 365, 378-79 (1 st Cir. 2003). We agr ee tha t a petitioner must show more. Here, Denko has provided no evidence that the Board failed to give Denko’s case proper review. See id. at 379 (“We are not will ing, however, in the

abse nce o f [] evide nce [of sy

stemic violation by the BI

A of its regulations] to inf er . . . th at the requi red review i s not takin

g place .”); see also Mendoza v. U.S. Att’yGen. , 327 F.3d 1283, 1289 (11th Cir. 2003) (“That

a one-sentence order

was entered is no evi den ce t hat th e BIA member did not reviewthe f

actsof [pe

titio ner’ s] cas e.”) . We will not assume

such a complete br

eak-dow n in the sy

stem in the absence of tangible evidence to supportsuch a conclusion.

Moreover, Denko’s argument that the summary aff

irmance withoutopinion permitted b y § 1003.1(a)( 7) violates the mandate that ag encies m

ust set for

th reasons for the ir decisions als o fa

ils b eca use the IJ ’ s opinion becomes the reasoned explanation needed for review. Albathani , 318 F.3d at 377 (notin

g that Chenery

only requires the

re le va nt ag en cy, here the INS, to give rea son s fo r its decisions, which may issue from either the BIA

or an I J). While De

nko has a viable argument that the BIA’s af

firmance-without-o pi nion 18 Denko v . INS No. 02-3746

9 The Ameri can Imm igrati on Law Found ation points out t hat the February 2002 pro pos als by the Attorney General i ncluded reducing the Board size f

rom twent

y-t hree to eleve n mem bers. A micus Br. a t 4; see also Lisa Getter & Jonathan Peterson, Speed ier R at e of Depor tat ion Rulings Assailed , Los A ngeles Tim es, Jan . 5, 20 03, a t 1. T his seem ingly contradictory prop osal intends to red uce the B oard’s bac klo g and the
amount of time sp ent on each case w hile limitin g t he number of persons authori zed to revie w rulings from th e imm igration judg es. Spe edier Ra te of Deportation Rul ings Assailed
, supra . The art icle notes that t wo Bo ard members each s ign ed m o re than fifty cases in o ne da y, which e qua tes to “a decisi on nearl y every 10 minutes if [one] worked a nin e-hour day with out a break .” Id. procedure is disting

uishable from an e

xpress adoption of the IJ’s opinion and rationale, it also i s true that a summary affirmance can be issued only w hen “the Boar d Member dete rmines that the result reached in the decision under review was correct.” 8 C. F.R . § 1 003 .1( a)( 7). Thu s, t he B IA member agrees with the result reache d by the IJ, and

then also determines that any err

ors in the I

J’s decision are ha

rmless or nonmaterial and that t

he issue r

aised iscon trolled by precedent and is not a

novel issue or that the legal and factual i ssues raised are insubstantial. By necessity, then, the BI A member must give the case his or her ful l cons ideration and

assessthe IJ’s decision

before the BI

A member

can determine that summ ary af

firmance without opinion is the proper procedure. 9 So while Denko’s case is not direct ly on po int with those cases where the BI A affirms on the basis of the IJ’s opinion, the cases nonethel ess are similar in t hat both require agreement

with the e

nd-resu lt as d ete rmi ned by th e IJ and both decl ine to require the Board to issueits own opinion using d i fferent words to reach the same e nd-result. See Guentchev , 77 F.3d at 1038.

Inresponse

to Denko’ s due-p rocess argument, the I NS points out that although the regulations permit appeals to the Board, su ch re vi ew is no t c on st it ut io na ll y com pelled. The INS relies f

or suppor t on th e Seven th Circuit’ s opinion in Guentchev
, which not e d that, “[t]he Constitution does not entitle aliens to administrative appeals. . . . [Thu s, t]heNo. 02-3746 Denko v . INS 19

Attorney Generalcould disp ense with the Boa rd and de legate [his] p owers to the immigration judges, or could give the Board discretion to choose which cases to review.” Id. at 1037-38 (hol di ng in a case decided befor e streamlining was

a do pted that “the

Board f ulfills its d

uty by s ummarily affirmingan immigr

ation judg e’s opini on”); see also Albathani
, 318 F.3d a

t 376 (“A n alien ha s no consti

tu tiona l right to any administrative

appeal at all.”). Accordingly , the Seventh Circuit has held that a reasoned decision by an ad mi ni st ra ti ve la w j ud ge an d r ev ie w b y a court of appeals is sufficient to sa tisfy

the requ

irements of due pr

ocess. Guentchev
, 77 F.3d

at 1038. As have many

circuits before us,
we now join the re cent tre nd of our s ister cir

cuits b y concludingthat the BIA’s strea mlining procedures do not themselves alone viol ate an alien’s r ights to d

ue proce ss. Carriche
, 335 F.3d at 1012 (Nint h Cir cuit); Georgis v. Ashcroft
, 328 F.3d 962, 9 67 (7 th Cir. 2003) (“Since we review directly the dec ision of t he IJ when a case comes to us fromthe B IA pursuant

to § 1003.1 (a)(7) , our abil ity t o conduct a full and f air appr aisal of t he petitioner’s c ase is not compromised, and the pe

titioner’ s due proc ess rightsare not violated.”); Mendoza , 327 F.3d at 12 89 (Eleventh Circuit); Soadjede v. Ashcr

oft , 3 24 F.3d 830, 832 (5th Cir. 2003); Albathani , 318 F.3d at 376-79 (First Circuit).
Likewise, it i s not “a due process violation f

or the B IA to affirm the IJ’s decis ion without issuing an opinion.” Carriche
, 335 F.3d at 1014. Even if the BI A would view the factual and leg al issues d iffere ntly from th e i mmigration judge, the summary-af

firmance-without-opinion rule renders the IJ ’s de ci si on th e f

in al ag en cy o rde r, and we review that decision. Thus, Denko receives the “full and fair” review that she is entitled to receive. Huicochea-Gomez , 237 F.3d at 699;

see Georgis v. Ash croft , 328 F .3d a t 967. More over , “[i]n functional terms, if

the BI A does not indepen dently state a correct ground for affirmance in a case in whic h the reasoning proffered by the IJ is faulty , the BIA risks reve rsal on appeal.” Albathani
, 318 F.3d a

t 378; see also Tuhin v. As hcroft , No. 02-2 661, 2003 WL 1342995, at *2 (7th Cir. Feb. 11, 2003) 20 Denko v . INS No. 02-3746

10 Mo reover, the re view proc ess off ered u nder § 1003. 1(a)( 7)

com por ts with the req uirem ents of d ue pr oce ss as de fined in Mathews v. Eldri dge
, 424 U .S. 319 (1 976). “The fundamental requirement of due
proce ss is the opp ortunity to be heard at a meaningful t ime and in a meaningful mann er.” Id. at 333 (quotation omitted). The Court ident ifi ed three factors t o consider w hen determining whether adminis trati ve proce dures co mpo rt with due proc ess: F ir st, the pri vate i nteres t th at wi ll be a ffe cted by t he off icia l action; seco nd, the risk of an er roneous depri vati on of such interest through the procedu res used, and th e pro bab le value , if
any, of ad ditio nal or substit ute procedural safeguards; and f inally, the Government ’s i nteres t, i ncludi ng the f unct io n involve d and the fis cal and administrat ive burdens that t he add itional o r substitute pro ced ural req uirem ent wo uld en tail. Id. at 335. Evaluating the Mathews fact ors inthe pres ent cas e, we bel ieve t hat it is clear tha t Denko has a substanti al inter est in havi ng her in ab sentia order of remo val rescinded. Denko, however, has not shown how the streamlini ng procedures i ncrease t he risk t hat sh e wil l be depri ved

erro neo usly of her interes t in remaini ng in t

he United Sta tes. See
gen erally Carri che , 335 F.3d at 1015 (“[T ] he alleged ris ks of erroneous (unpubl ishe d

order) (“The BI

A’s summary af

firmance of a flawed decision by an I

J, however, m ay lead u s to conclude that the BI A’s dec isio n is insufficient.”). Thus, we are not forced to guess at the rationale of the B IA, but instead we evaluat e the IJ’s explanation as that of th e Board; the Board cannot rely on an una

rticulated basis for its determination. SeeFed. Powe

r Comm’n v

. Te xaco, Inc. , 417 U.S. 380, 397 (1974)(“An

agenc y’ s order m

ust b e upheld, if at all, on the

same basis articulated in the order by the agency

itself.”). See generall yAlbathani , 318 F.3d

at 377 (noting tha

t “[t ]he

summ ary affi rmance sc

heme doescrea

te . . . problems

[f o r revi ew], but they do not render the scheme

a violation of due process or render

ju dicial re

view impos sible”); see also Carriche , 335 F.3d at 1014 (“[T]he streamliningprocedures do not compromise our ability to review the INS’s decision, to the extent we h ave jurisdiction to do so, because we can review the IJ’s decision dire ctl y.”). Thus, De nko’s due process rights are not

violated simply because the B IA did not issue a reasoned explanation. 10No. 02-3746 Denko v . INS 21

depri vati on are mitigat ed through the re gulato ry structure itself. Petitioners receive a r eason ed deci sion fr om the IJ an d hav e the o ption to seek reco nside ration fro m the B IA. . .

. [I] n cas es wh ere t he cour ts of appeal have j urisdic tion, pe titioners a re also entitled to an addit ional level of review .”). It i s not at

all clear that

requi rin g more e labor ate revi ew by the BIA would s ecure Denko’ s i nter est in n ot bei ng deported. The INS has a stron g interes t in its proc edu res for a ccura te, efficient, and economical adjudication of immigrati on matters. The D OJ enacted this str eamlining procedure i n response to st atis tics showing that between 1984 and 19 99, appeals and mot ions t o the Board incr eased more th an nin e-f old. Streamlining, 64 Fed. Reg. at 56136. Other objectives of the DOJ in e nacting thi s procedure included promo ting uni formity i n the IJ d ecisions, deci ding case s i n a t imel y f ashi on, a ssu rin g th e cor rec t dispos it ion of cases, and reducing t he BIA ’s back log. Id. The Supr eme Court has indicated it s appro val of a gencies fash ionin g thei r own app rop riate proce dures: “‘admi nist rati ve agenci es and a dmin istrators w ill be familiar wi th the industrie s which they regu late and will be in a bet ter pos ition than feder al cou rts or C ongr ess itself to design procedural r ules adapted to t

he pecu li ari ti es of

the indu str

y and the tasks of th e agency involv ed.’” Vermont Yankee Nuclear Power Corp. v. Na tural R es. D ef. Co unc il, Inc. , 435 U.S. 519, 525 (1978) (quota tion omi tted) . Denko has fail ed to show how more elaborat e proceedings would bett er protect her interest in rema ining in the United States, and th us h as f ail ed t o over come the go vernm ent’s stron g interes t. Separat e from her attack on

the statute’s co ns ti tu ti on al it y, Denko also arg

ues t hat use of the summary-affirmance procedures in this cas e was impr oper bec ause her

case did not meet the criteria for application of this procedure. D e n ko’s

ma incontention is that there are factual issues — whet he r Wojnar’s letter was ambiguous, whether Denko would have attended t he hearing, w

hether D enko was

unable to understand

the letter — that are not insubstantial and require review by a three -member panel. In response, the I NS asserts that the Boa

rd’s dec ision to re

view Den ko’s appe al usi n g summary-af

firmance procedur es is insulated from review. Citing Heckler v. Chaney , 470 U.S. 821 (1985), the INS states that because the Administrative Procedure Act (“A PA”) governs judicial review

of age ncy actions, judicial r

eview is inappropriatewhen the “agency act ion is committed

to agency discretion by law.” Id. at 828 (qu oting 5 U .S.C. 22 Denko v . INS No. 02-3746

§ 701(a )(2)). Interpre ting t his ph ra se us in g l eg is la ti ve hi st or y, the Heckler

Court determined that judicial review i s precluded “if the statute is drawn so that a court would have

no meanin gful standard against which to judg e the agency ’s

ex erc is e of

di scr eti on. Insuch a ca se, the st atute(‘law’) can be taken to have ‘committed’ the decisionmaking to the agency ’s judgment absolutely.” Id. at 830. The INS argu es that a Board mem

b er’s de cision to st

reamline a case i s a decisionthat has been committed to the agency ’s discretion because it involves “‘a complicated balancing of a number of factors which are peculiarly within the expertise of the agency .’” Appellee’s Br. at 19 (qu otin g Heckler , 470 U.S. at 831). Specifically, the I

NS argues that in order

for the agency to determine that no novel or comp lex i ssues ar e raise d it must evaluat e the Board’s caseload — a task idea lly suited to the Boa rd, not the

court.

As an in itia l matter, this arg ument for

committing

this decision to the agency ’s discretion is doubtfu

l becaus e there

are judiciall

y ma nagea ble standards available to a reviewing court. Streamlining procedures are use d only when the result reached by the IJ i s correct, any

errors are harmless or nonmater i al, and either the issue is controlled by precedent and does not require application to novel facts or the factual and legal questions areinsubstantial and do not warrant threemember review

. These factors straight from the re gulation itself provide the necessary

guidelines for judicial review. Moreover, the size of the BIA’s ca seload — a factor whic h the Board may

be better equipped to asses s — has no relevance in de cidin g which cases are appr opriate for summary affirmance. That determination is made using the factors identifie d in

§ 1003.1(a)(7). Moreover, as maintained i na Seventh

Circuit op inion, for

many streamli ned case s “ i t makes no practical difference wheth er the BIA pr operly or improper ly stream line d review

of [Denko ’s] case, ” becau se when “we review dire ctly

the deci sion of the

IJ whe n a case
com es to us from t

he BI A pursua

nt to [8 C.F. R. § 1003.1(a

)(7)], ou r ability to conduct a full and

fair appraisalNo. 02-3746 Denko v . INS 23

of [Denko’s] case is not

compromised.” Georgis
, 328 F.3d at 967 (footnote omitted).
Assuming , without de ciding, that judic ial revie w proper ly is employed to assess whe ther the BIA c orrec tly des ignated

a case for summary

affirmance, De nko’s argument that the summary-af

firmance-w ithout-opinion procedure was invok ed improper ly in her case nonetheless must fai l. The IJ’s decisionto deny

the resc ission of D enko’s in absenti a order of removal was prop er beca

use Denko failed to appear for her scheduled hearing although she was wa rned o n nume rous occasions that her presence was require d. Moreover, because Denko did not produce any e vidence other t

h an Wojnar’s letter and Denk o’s aff idavit to establish ineffective assistance of counsel, the fact

ual and legal issues raised were insubstan tial. Denko cl early

did not tak

e affir mative ste

ps to accept Wojnar’s offer to request an at tendan ce waiver from the IJ, and Denko’s self-serving affidavit did not give any indicationthat she would have prevailed in her removal procee dings if only she had had compete nt counse l. While it may be true that

Denko misinterpreted Wojn ar’s let ter due t o Denko’s langua

ge bar rie r, the IJ’s conclusion that Denko should have been diligent to verify with Wojnar the status of Denko’s allege d waiver seems mor e than ap propria te considering the previous warnings which Denko does not sugge st she failed to

comprehend. Because the fa cts and legal issues of Denko’s case fit precisely within the boundaries of § 1003.1(a)(7), the Board pr operl y in vo ke d t he su mm ar yaffirma nce-wit hout-opin ion proce dures.

III. CONCL USION

Based o n the foregoing conclusions, we AFFIRM the judgment of the IJ and uphold § 1003.1(a)(7)’s streamlining procedures as consti tutional a nd consist ent with administr ative-la w prece dent.