*

The Honorable Karen Caldwell, United States District Judge for the

Eastern District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0432P (6th Cir.)

File Name: 03a0432p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

SVITLANA DENKO,

Petitioner,

v.

IMMIGRATION AND

NATURALIZATION SERVICE,

Respondent.

X

-

-

-

-

>

,

-

-

-

-

N

No. 02-3746

On Appeal from the Board of Immigration Appeals.

No. A76 853 968.

Argued: July 29, 2003

Decided and Filed: December 8, 2003 

Before: DAUGHTREY and MOORE, Circuit Judges;

CALDWELL, District Judge.*

_________________

COUNSEL

ARGUED: David W. Leopold, Cleveland, Ohio, for

Petitioner. Greg D. Mack, UNITED STATES

2 Denko v. INS No. 02-3746

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: David W. Leopold, Cleveland,

Ohio, for Petitioner. Greg D. Mack, Emily A. Radford,

UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. Nadine K. Wettstein,

AMERICAN IMMIGRATION LAW FOUNDATION,

Washington, D.C., for Amicus Curiae.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Petitioner

Svitlana Denko (“Denko”) appeals the decision of the Board

of Immigration Appeals (“BIA” or “Board”) to affirm without

opinion the Immigration Judge’s (“IJ”) order of removal

against Denko and its decision to deny Denko’s motion to

rescind the in absentia order of removal. Denko makes two

arguments on appeal. First, Denko argues that it was an abuse

of discretion for the IJ not to reopen removal proceedings

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 decision on

Denko’s part to abandon her request for asylum. Second,

Denko argues that the regulation permitting the Board

summarily to affirm without opinion the IJ’s decision,

8 C.F.R. § 1003.1(a)(7), violates established administrative

law because it is inconsistent with other provisions of the

Immigration and Nationality Act (“INA”) and violates the

Due Process Clause of the United States Constitution because

it fails to produce a separate BIA decision for the court of

appeals to review. We AFFIRM the judgment of the IJ and

uphold 8 C.F.R. § 1003.1(a)(7)’s summary-affirmancewithout-opinion rule as both constitutional and consistent

with administrative-law precedent.
No. 02-3746 Denko v. INS 3

1

Respondent suggests that Denko did not apply for asylum until on

or about March 27, 1998.

I. BACKGROUND

Denko came to this country as a lawful nonimmigrant

visitor on April 25, 1993, from her native homeland in

Ukraine. Her authorization permitted her to stay for no longer

than six months. Denko remained in this country well past

her six-month authorization, and it was not until March 3,

1998,1 nearly five years after Denko first entered, that she

filed an affirmative request for asylum based on religious

persecution. Denko is Jewish and claims that, while living in

Ukraine, she was persecuted by local Ukrainian nationalists.

Denko states that she attempted to secure protection from

local government agencies in Ukraine but that none would

assist her. She cites as specific examples of persecution, the

following: large fines were fraudulently imposed on her

business by anti-Semitic local officials, she was harassed and

received threats of violence from local police, and she was

victimized and beaten by members of the Ukrainian Self

Defense, a military unit of the Ukrainian National Army.

After Denko’s request for asylum, the INS served Denko on

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

cause as to why she did not leave the United States on or

before her six-month permission expired. The NTA ordered

Denko to appear before the IJ on October 29, 1999, and,

according to the INS, included a warning which stated: “If

you fail to attend the hearing at the time and place designated

in this notice, or any date and time later directed by the

Immigration Court, a removal order may be made by the

immigration judge in your absence, and you may be arrested

and detained by the INS.” Appellee’s Br. at 5.

At this October initial hearing, Denko was represented by

her attorney, Nicoleta Wojnar (“Wojnar”). Denko admitted

to the factual allegations against her and that she was

4 Denko v. INS No. 02-3746

2

Denko’s brief misquotes this letter in a significant way: she omits

the key phrase “if you so desire.” Appellant’s Br. at 4. Omission of this

critical phrase distorts the meaning of the letter.

removable pursuant to the INA. During this hearing, the IJ

advised Denko of the consequences of her failure to appear at

the scheduled second master-calendar hearing set for April 7,

2000. In addition, the order issued on October 29 contained

a written warning that Denko must appear on April 7, 2000:

Failure to appear at your hearing except for exceptional

circumstances may result in one or more of the following

actions: (1) You may be taken into custody by the

Immigration and Naturalization Service and held for

further action[,] OR (2) Your hearing may be held in

your absence under section 240(b)(5) of the Immigration

and Nationality Act. An order of removal will be entered

against you if the Immigration and Naturalization Service

established by clear, unequivocal and convincing

evidence that a) you or your attorney has been provided

this notice and b) you are removable.

Joint Appendix (“J.A.”) at 32 (Not. of Hr’g in Removal

Proceedings). Another reminder came almost four months

before the second master-calendar hearing, when Denko

received a letter from Wojnar stating:

If you would like we could request a Motion to the

Judge so you do not have to be present on April 07,

2000, in which case I will be there representing you . . . .

Please let our office know if this is something you

would like to consider and although we have the right to

request it from the Judge, the Judge does not necessarily

have to grant it. However, for your convenience we will

attempt to do so if you so desire.

J.A. at 30.2 It is the wording of this letter that forms the basis

for Denko’s assertion of ineffective assistance of counsel.
No. 02-3746 Denko v. INS 5

3

As required by In re Lozada, 19 I. & N. Dec. 637 (BIA 1988),

Denko simultaneously filed a grievance against Wojnar with the

Cleveland Bar Association. The Ohio Disciplinary Counsel dismissed the

grievance, stating that Wojnar adequately communicated with Denko and

sought to keep her abreast of the details in her immigration case.

Denko, noting that English is not her native language,

argues that she interpreted Wojnar’s letter to mean that

Denko’s presence was not required at the master-calendar

hearing. Moreover, Denko claims that Wojnar informed her

that Wojnar would seek a motion to waive appearance. As a

result of Wojnar’s letter, Denko failed to attend her second

master-calendar hearing on April 7, 2000. Consequently, the

hearing was conducted in absentia pursuant to § 240(b)(5)(A)

of the INA. Because a waiver of Denko’s personal

appearance was never requested, the IJ ordered Denko

removed to Ukraine. The IJ concluded that no special

circumstances were present to justify Denko’s absence from

the hearing.

On June 22, 2000, after retaining new counsel, Denko

moved to reopen her removal proceedings based on

ineffective assistance of counsel.3 Denko claimed in her

accompanying affidavit that she misunderstood the mixed

signals contained in Wojnar’s letter. Additionally, Denko

argued that Wojnar never informed her of Denko’s required

presence and never sought the waiver that Wojnar agreed to

seek in the letter. As evidence of Wojnar’s ineffectiveness,

Denko pointed out that the INA requires the alien’s presence

at the master-calendar hearing except in a few special

circumstances, none of which was present in Denko’s case.

On August 3, 2000, the IJ denied Denko’s motion. The judge

reasoned that:

Apart from [Wojnar’s] letter the Respondent has not

offered any additional evidence to indicate that there was

an agreement to submit a Motion to Waive Appearance

nor has the Respondent indicated anything further in her

affidavit to support the existence of the “agreement.” A

6 Denko v. INS No. 02-3746

plain reading of the letter indicates that Respondent’s

prior counsel was merely extending an offer to file the

motion. It does not rise to the level of an agreement

without evidence to indicate that the offer was accepted.

There was no evidence of a letter, telephone call, or any

other form of communication that would indicate the

Respondent accepted the offer and had a reasonable

expectation that it would be filed.

J.A. at 22 (Decision & Or. of I.J.). Additionally, the IJ noted

that even if Wojnar agreed to file the motion and then failed

to perform, Denko had a duty to follow up because Wojnar’s

letter made clear that the IJ had discretion to grant or deny the

motion. The IJ thus held that the in absentia order of removal

was proper.

Denko timely filed a notice of appeal to the Board on

August 29, 2000. Denko argued that the IJ’s decision was an

abuse of discretion because it relied on Wojnar’s ambiguous

letter to show that Denko was aware of the consequences of

her failure to appear. According to Denko, because English

is not her native tongue and because Wojnar’s confusing letter

negated the IJ’s prior warnings, the motion to reopen should

have been granted because Denko’s failure to appear was the

result of Wojnar’s ineffectiveness as counsel. On June 5,

2002, the Board, using the newly enacted streamlining

procedures, affirmed the IJ’s order without issuing an

opinion. Denko now seeks review in this court, where she

challenges the BIA’s affirmance of the IJ’s order of removal

and the BIA’s use of the affirmance-without-opinion

procedure.

II. ANALYSIS

A. Denial of the Motion to Rescind the In Absentia

Order of Removal

Denko asserts that the IJ abused her discretion when she

denied Denko’s motion to reopen the order of removal.
No. 02-3746 Denko v. INS 7

Denko argued in that motion, and argues here on appeal, that

Wojnar’s assistance was ineffective because Wojnar failed to

make clear Denko’s responsibility for appearing at the second

hearing on April 7, 2000. In Denko’s estimation, the IJ

abused her discretion when she failed to give adequate weight

to Denko’s affidavit and supporting evidence that Denko was

misinformed and would have reacted differently had she been

given the proper information.

The denial of a motion to reopen or reconsider a removal

order is reviewed for an abuse of discretion. INS v. Doherty,

502 U.S. 314, 324 (1992). An abuse of discretion can be

shown when the IJ or Board offers no “rational explanation,

inexplicably depart[s] from established policies, or rest[s] on

an impermissible basis such as invidious discrimination

against a particular race or group.” Balani v. INS, 669 F.2d

1157, 1161 (6th Cir. 1982). When the BIA adopts the

reasoning of the IJ, we review the IJ’s decision to determine

whether the BIA abused its discretion. Kegode v. Ashcroft,

No. 01-3865, 2003 WL 1949609, at *2 (6th Cir. April 22,

2003) (unpublished). When the BIA issues an order pursuant

to 8 C.F.R. § 1003.1(a)(7), affirming the result of the IJ’s

decision but not necessarily adopting the IJ’s reasoning, the

only “rational explanation” is that of the IJ; thus here we

review the IJ’s decision for an abuse of discretion, as is

discussed more fully in Part II.B. infra.

An in absentia order issued pursuant to § 240(b)(5) of the

INA can be rescinded if the alien can show that she failed to

appear because: (1) she was in custody and her failure to

appear was not her fault; (2) she never received notice of the

proceedings; or (3) she had other exceptional circumstances.

8 C.F.R. § 1003.23(b)(4)(iii). See also 8 U.S.C.

§ 1229a(b)(5)(C). In Denko’s case, because she was not in

custody and most certainly received multiple forms of notice,

the order can be rescinded only if the motion to reopen shows

that there were exceptional circumstances causing her failure

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 death of the spouse, child, or parent of the

alien, but not including 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. Dec. 33 (BIA

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 expect that in determining whether an

alien’s failure to appear was justifiable the Attorney General

will look at the totality of the circumstances to determine

whether the alien could not reasonably have been expected to

appear”). Thus, the question that we must address is whether

it was an abuse of discretion for the IJ to determine that

Denko’s claims of ineffective assistance of counsel were

insufficient to constitute an exceptional circumstance.

Because “[a] deportation proceeding is a purely civil

action,” INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984),

an ineffective assistance of counsel claim is reviewed under

the Due Process Clause of the Fifth Amendment rather than

under the Sixth Amendment. “Fifth Amendment guarantees

of due process extend to aliens in deportation proceedings,

entitling them to a full and fair hearing.” Huicochea-Gomez

v. INS, 237 F.3d 696, 699 (6th Cir. 2001). Ineffective

assistance of counsel in a deportation proceeding will rise to

the level of a due-process violation under the Fifth

Amendment “only if the proceeding was so fundamentally

unfair that the alien was prevented from reasonably

presenting his case.” Ramirez-Durazo v. INS, 794 F.2d 491,

499-500 (9th Cir. 1986) (quotation omitted); see also

Taniguchi v. Schultz, 303 F.3d 950, 958 (9th Cir. 2002) (“To

show ineffective assistance of counsel, a party must

demonstrate that the actions of his/her attorney resulted in

prejudice to the party. A party must prove prejudice by

alleging facts that permit the court to infer that competent

counsel would have acted otherwise.” (citations omitted)).

The alien will succeed if he meets his burden of showing

more than “mere[] ineffective assistance of counsel, but
No. 02-3746 Denko v. INS 9

assistance which is so ineffective as to have impinged upon

the fundamental fairness of the hearing in violation of the

fifth amendment due process clause.” Ramirez-Durazo, 794

F.2d at 500 (quotation omitted);see also Huicochea-Gomez,

237 F.3d at 699 (“The alien carries the burden of establishing

that ineffective assistance of counsel prejudiced him or denied

him fundamental fairness in order to prove that he has

suffered a denial of due process.”).

The IJ determined that Denko did not receive ineffective

assistance of counsel because Wojnar’s letter could not be

interpreted to form an agreement that Wojnar would request

a waiver of Denko’s appearance. At best, Wojnar’s letter to

Denko could be interpreted as extending an offer to file a

waiver motion. According to the IJ, Denko offered no other

evidence of an agreement between herself and Wojnar.

Moreover, the IJ noted that even assuming that the letter

could be interpreted to constitute an agreement, the letter

clearly stated that the IJ had discretion to grant or refuse any

request, and thus Denko should have followed up with

Wojnar to determine the status of her required attendance at

the hearing. The IJ noted that at the initial scheduling

hearing, Denko was warned of the consequences of her failure

to appear at any future scheduling hearing both verbally and

in writing.

The IJ’s determination that Wojnar’s actions were

insufficient to constitute an exceptional circumstance

explaining Denko’s absence, and thus did not violate Denko’s

due-process rights, was not an abuse of discretion. The IJ

provided a “rational explanation” for her conclusions that

Denko had sufficient notice of the consequences for failure to

attend her hearing and that the allegations against Wojnar

were insufficient to establish ineffective assistance of counsel.

Balani, 669 F.2d at 1161. In addition, Denko was not entitled

to relief on her allegedineffective-assistance-of-counsel claim

because she failed to show how her liberty interest was

violated. Huicochea-Gomez, 237 F.3d at 699. Denko is

unable to show the necessary “prejudice” or “fundamental

10 Denko v. INS No. 02-3746

unfairness” because she cannot establish that “but for

[Wojnar’s] legal advice, [she] would have been entitled to

continue residing in the United States.” Id. at 699-700

(noting that “[t]he failure to be granted discretionary relief

does not amount to a deprivation of a liberty interest”). In

fact, Denko merely asserts that if she had not relied on

Wojnar’s allegedly confusing letter, she would have appeared

at her scheduled hearing and an order in abstentia would not

have been entered against her. While this may very well be

accurate, this is not equivalent to a showing that if Denko

attended the hearing she would have been granted the asylum

she sought. The lack of fundamental unfairness becomes

even more clear when we consider that Denko neither

contests the illegal nature of her presence in the U.S. nor her

deportability. In addition, Denko failed to allege any facts

that tend to show that a competent lawyer would have

behaved differently than Wojnar. See Taniguchi, 303 F.3d at

958 (noting that prejudice can be established through facts

tending to show that a competent lawyer would have acted

differently).

Denko’s suggestion that because her affidavitstates that she

was confused by Wojnar’s letter the IJ was obligated to find

that Denko suffered ineffective assistance of counsel is not

compelling. Wojnar’s letter reiterated that Denko’s hearing

was scheduled for April 7, 2000, and provided Denko an

opportunity to seek to avoid her required attendance at the

hearing. However, the language used in the letter clearly

indicated that a motion to waive appearance could be filed at

Denko’s request, and Denko presented no evidence of any

such request made to Wojnar. Although Denko argues that

her language barrier 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 warnings at the

initial hearing. Moreover, it was Denko’s responsibility to

understand the contents of a letter which, under a plain

reading, only can be interpreted as an offer to file a motion

with the immigration court. Because Denko failed to heed the

prior warnings regarding attendance and neglected to confirm
No. 02-3746 Denko v. INS 11

4

Section 1003.1(a)(7) states, in relevant part:

The Chairman may designate, from time-to-time, permanent

Board Members who are authorized, acting alone, to affirm

decisions of Immigration Judges and the Service without

opinion. . . . 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

(A) The issue on appeal is squarely controlled by

existing Board or federal court precedent and does

her own understanding ofWojnar’s letter, we cannot conclude

that Denko suffered fundamental unfairness.

In sum, while Denko has shown that her failure to appear

at her hearing precipitated the in absentia order against her,

Denko has failed to meet her burden to show fundamental

unfairness or prejudice arising from Wojnar’s conduct. See

Huicochea-Gomez, 237 F.3d at 699; Ramirez-Durazo, 794

F.2d at 499-500. Because Denko failed to establish an

exceptional circumstance through a showing of ineffective

assistance of counsel, the IJ did not abuse her discretion in

denying Denko’s motion to rescind the in absentia order of

removal, and the BIA did not abuse its discretion in affirming

the IJ’s conclusions.

B. Summary-Affirmance-Without-Opinion Procedure

On appeal to the Board, Denko challenged the IJ’s denial of

her motion to rescind the in absentia order of removal based

on Denko’s failure to establish exceptional circumstances.

The Board, using the summary-affirmance-without-opinion

procedure (also referred to as the streamlining procedure),

agreed with the IJ’s result. Now on appeal, Denko challenges

the streamlining procedure’s compliance with the

requirements of due process and established administrativelaw precedent. Denko makes two broad arguments for

striking down 8 C.F.R. § 1003.1(a)(7).4 First, Denko asserts

12 Denko v. INS No. 02-3746

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.

. . .

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.

8 C.F.R. § 1003.1(a)(7).

that § 1003.1(a)(7) violates congressional intent embodied in

the INA, because Congress intended to enact greater

procedural protections in administrative hearings for aliens.

According to Denko, the administrative-law scheme was

designed so that aliens would have two de novo reviews of

their claims within the administrative system, one with the IJ

and another with the BIA. In Denko’s estimation,

§ 1003.1(a)(7)’s license to members of the Board to issue

summary affirmances without opinions renders de novo

review by the BIA impossible. Denko also asserts that

§ 1003.1(a)(7) contradicts other INA provisions which permit

appeals only from final orders. Denko argues that because the

BIA did not independently render a decision, there is no final

agency order for this court to review.

Second, Denko asserts a Due Process Clause violation in

that the regulation allows the BIA to issue a summary

affirmance without also issuing a separate opinion.

According to Denko, because the BIA does not issue its own

opinion, Denko has a diminished opportunity to receive a

“full and fair judicial review” of the final agency order.

Appellant’s Br. at 7. Denko argues that the Supreme Court

has noted that in order for a court to review an agency’s

action, the action must be clearly stated because “[i]t will not

do for a court to be compelled to guess at the theory
No. 02-3746 Denko v. INS 13

5

This argument is also the heart of the Amicus Curiae’s (hereinafter

“American Immigration Law Foundation”) brief. Both Denko and the

American Immigration Law Foundation agree that the failure of the Board

to issue an opinion makes it impossible for a reviewing court to determine

whether Denko received any process as required by the Due Process

Clause.

A summary affirmance does not indicate which of the[]

alternatives [in § 1003.1(a)(7)] was applied to the case. It is

equally impossible to determine how the criteria were analyzed:

what precedent was considered; why the facts were found not to

be novel; what factual and legal questions were considered; and

the standard for determining whether questions raised on appeal

were “so insubstantial” that three-Member review is not

warranted.

Amicus Br. at 13.

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.” SEC v. Chenery Corp., 332 U.S.

194, 196-97 (1947). Denko cites a Ninth Circuit case for the

proposition that where the Board fails to offer a reasoned

explanation, the reviewing court must set aside the Board’s

decision. See Tukhowinich v. INS, 64 F.3d 460, 464 (9th Cir.

1995). The main problem with the summary affirmance

process, according to Denko, is that the basis for the Board’s

affirmance is concealed from our review by the explicit

command of the regulation. Denko asserts that this

concealmentmakes the summary-affirmance-without-opinion

procedure violate due process.

5

“It is well established that the Fifth Amendment entitles

aliens to due process of law in deportation proceedings.”

Reno v. Flores, 507 U.S. 292, 306 (1993). As an initial

matter, aliens who have entered the United States, both

lawfully and unlawfully, cannot be “expelled” without the

government following established procedures consistent with

the requirements of due process. Shaughnessy v. United

States ex rel. Mezei, 345 U.S. 206, 212 (1953). We review de

novo claims of due-process violations in deportation

proceedings. Huicochea-Gomez, 237 F.3d at 699. When the

14 Denko v. INS No. 02-3746

6

As noted by the American Immigration Law Foundation, the most

recent revisions to the regulations mandate single-member review as the

standard procedure for appeals. Now a three-member panel on appeal is

appropriate only when the BIA needs to establish precedent, the BIA

needs to settle differences among IJs, the case is of national importance,

the IJ’s decision is not in conformity with the law, the IJ makes a clearly

erroneous factual determination, or the Board needs to reverse the IJ’s

decision. 8 C.F.R. § 1003.1(e)(6).

Board adopts the decision of the IJ in lieu of issuing its own

opinion, we review the IJ’s decision as the final agency

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

At the time Denko appealed to the Board, the Board’s

general policy was to sit in three-member panels to review IJ

decisions on appeal.6 Under § 1003.1(a)(7), adopted by the

Department of Justice (“DOJ”) in 1999, a single Board

member is authorized to issue a decision affirming an IJ’s

decision without stating the basis for such affirmance. This

affirmance implies that the IJ decided the case correctly, any

errors committed by the IJ were immaterial or harmless, and

either the issue is squarely controlled by precedent and does

not involve a novel factual issue or the factual and legal issues

raised on appeal are too insubstantial to warrant a threemember review. 8 C.F.R. § 1003.1(a)(7). If an appeal from

a decision of the IJ meets the regulation’s criteria, the Board

issues an order containing the following statement: “The

Board affirms, 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 appeal does

not meet the criteria contained in § 1003.1(a)(7), a threemember panel of the BIA must review the petition. Id. at

§ 1003.1(a)(7)(iv).

Section 1003.1(a)(7) specifically indicates that a summary

affirmance “does not necessarily imply approval of all of the

reasoning of the [affirmed] decision.” Id. at

§ 1003.1(a)(7)(iii). In the comments to the proposed rule, the
No. 02-3746 Denko v. INS 15

7

28,000 appeals in 1998 was a dramatic increase from the 3,000

appeals handled by the BIA in 1984. In 2002, the number of appeals to

the BIA reached 34,000. Carriche v. Ashcroft, 335 F.3d 1009, 1012 (9th

Cir. 2003) (citing Executive Office for Immigration Review, Statistical

Year Book: 20 02, a t 49, fi g. 23, available a t

http://www.usdoj.gov/eoir/statspub/fy02syb.pdf).

DOJ identified the impetus behind permitting a summary

affirmance by a single Board Member:

To operate effectively in an environment where over

28,000 appeals and motions are filed yearly, the Board

must have discretion over the methods by which it

handles its cases. The process of screening, assigning,

tracking, drafting, revising, and circulating cases is

extremely time consuming. Even in routine cases in

which all Panel Members agree that the result reached

below was correct, disagreements concerning the

rationale or style of a draft decision can require

significant time to resolve. The Department has

determined that the Board’s resources are better spent on

cases where there is a reasonable possibility of reversible

error in the result reached below.

Executive Office for Immigration Review; Board of

Immigration Appeals: Streamlining, 64 Fed. Reg. 56135,

56137 (Oct. 18, 1999) (hereinafter “Streamlining”).7 To

remedy the problems resulting from the dramatic increase in

appeals, the Attorney General sought to implement a new

streamlined appellate review system because “in a significant

number of appeals and motions filed with the Board, a single

appellate adjudicator can reliably determine that the result

reached by the adjudicator below is correct and should not be

changed on appeal.” Id. at 56135. By expressly prohibiting

the single Board member from including his or her own

explanation or reasons within the order, the regulation further

alleviates the burden on the Board.

16 Denko v. INS No. 02-3746

8

In Carriche, the Ninth Circuit noted that alien petitioners “have

understandable concerns about the streamlining process” including “the

lack of transparency in the process, the increasing frequency in which the

process is invoked, the speed with which appeals are decided, and a belief

that the BIA may be abdicating its statutorily-mandated role of appellate

review.” Carriche, 335 F.3d at 1013.

In response to Denko’s first argument8 — 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 that it is

required to do so. See Abdulai v. Ashcroft, 239 F.3d 542,

548-49 (3d Cir. 2001) (“Because an alien facing removal may

appeal to the BIA as of right, and because the BIA has the

power to conduct a de novo review of IJ decisions, there is no

‘final order’ until the BIA acts.”); Castillo v. INS, 951 F.2d

1117, 1120-21 (9th Cir. 1991) (“The BIA has the power to

conduct a de novo review of the record, to make its own

findings, and to determine independently the sufficiency of

the evidence.”). While deliberate action from the BIA may be

necessary, Denko’s suggestion that a summary affirmance

without opinion is not a final order is directly contradicted by

the terms of the regulation which indicate that the IJ’s opinion

becomes the final agency determination subject to review.

8 C.F.R. § 1003.1(a)(7)(iii) (“The Board affirms, without

opinion, the results of the decision below. The decision

below is, therefore, the final agency determination.”).

Courts have consistently allowed the IJ’s decision to

become the final agency determination subject to review

when the Board has adopted the IJ’s findings or has deferred

to the IJ’s decision. See Guentchev v. INS, 77 F.3d 1036,

1038 (7th Cir. 1996) (“To adopt someone else’s reasoned

explanation is to give reasons.”); Abdulai, 239 F.3d at 549

n.2; Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996). The Third

Circuit in Abdulai noted that there are occasions where “as a

matter of logic” the courts of appeals are reviewing

effectively the IJs’ decisions, such as when the BIA affirms

on the 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 IJ’s opinion that provides the required

reasoning. See Tukhowinich, 64 F.3d at 463. All of these

decisions, however, require that the BIA give the IJ’s findings

“individualized consideration.” See, e.g., Chen, 87 F.3d at 8.

When the BIA does not perform its duty to “review the record

and assess the IJ’s conclusions,” the BIA abuses its own

discretion. Tukhowinich, 64 F.3d at 463. Thus, we must

address Denko’s argument that the summary affirmance

procedure enables BIA members to give less than full

consideration to the IJ decisions they review. The First

Circuit previously has addressed this argument and concluded

that a challenge to the summary affirmance procedure cannot

stand when the only evidence that the summary affirmance

procedure causes the BIA to disregard its review

responsibilities is the nature of the procedure itself combined

with statistics indicating that thorough review would be

difficult. See Albathani v. INS, 318 F.3d 365, 378-79 (1st Cir.

2003). We agree that 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

willing, however, in the absence of [] evidence [of systemic

violation by the BIA of its regulations] to infer . . . that the

required review is not taking place.”); see also Mendoza v.

U.S. Att’y Gen., 327 F.3d 1283, 1289 (11th Cir. 2003) (“That

a one-sentence order was entered is no evidence that the BIA

member did not review the facts of [petitioner’s] case.”). We

will not assume such a complete break-down in the system in

the absence of tangible evidence to support such a conclusion.

Moreover, Denko’s argument that the summary affirmance

without opinion permitted by § 1003.1(a)(7) violates the

mandate that agencies must set forth reasons for their

decisions also fails because the IJ’s opinion becomes the

reasoned explanation needed for review. Albathani, 318 F.3d

at 377 (noting that Chenery only requires the relevant agency,

here the INS, to give reasons for its decisions, which may

issue from either the BIA or an IJ). While Denko has a viable

argument that the BIA’s affirmance-without-opinion

18 Denko v. INS No. 02-3746

9

The American Immigration Law Foundation points out that the

February 2002 proposals by the Attorney General included reducing the

Board size from twenty-three to eleven members. Amicus Br. at 4; see

also Lisa Getter & Jonathan Peterson, Speedier Rate of Deportation

Rulings Assailed, Los Angeles Times, Jan. 5, 2003, at 1. This seemingly

contradictory proposal intends to reduce the Board’s backlog and the

amount of time spent on each case while limiting the number of persons

authorized to review rulings from the immigration judges. Speedier Rate

of Deportation Rulings Assailed, supra. The article notes that two Board

members each signed more than fifty cases in one day, which equates to

“a decision nearly every 10 minutes if [one] worked a nine-hour day

without a break.” Id.

procedure is distinguishable from an express adoption of the

IJ’s opinion and rationale, it also is true that a summary

affirmance can be issued only when “the Board Member

determines that the result reached in the decision under

review was correct.” 8 C.F.R. § 1003.1(a)(7). Thus, the BIA

member agrees with the result reached by the IJ, and then also

determines that any errors in the IJ’s decision are harmless or

nonmaterial and that the issue raised is controlled by

precedent and is not a novel issue or that the legal and factual

issues raised are insubstantial. By necessity, then, the BIA

member must give the case his or her full consideration and

assess the IJ’s decision before the BIA member can determine

that summary affirmance without opinion is the proper

procedure.9 So while Denko’s case is not directly on point

with those cases where the BIA affirms on the basis of the

IJ’s opinion, the cases nonetheless are similar in that both

require agreement with the end-result as determined by the IJ

and both decline to require the Board to issue its own opinion

using different words to reach the same end-result. See

Guentchev, 77 F.3d at 1038.

In response to Denko’s due-process argument, the INS

points out that although the regulations permit appeals to the

Board, such review is not constitutionally compelled. The

INS relies for support on the Seventh Circuit’s opinion in

Guentchev, which noted that, “[t]he Constitution does not

entitle aliens to administrative appeals. . . . [Thus, t]he
No. 02-3746 Denko v. INS 19

Attorney General could dispense with the Board and delegate

[his] powers to the immigration judges, or could give the

Board discretion to choose which cases to review.” Id. at

1037-38 (holding in a case decided before streamlining was

adopted that “the Board fulfills its duty by summarily

affirming an immigration judge’s opinion”); see also

Albathani, 318 F.3d at 376 (“An alien has no constitutional

right to any administrative appeal at all.”). Accordingly, the

Seventh Circuit has held that a reasoned decision by an

administrative law judge and review by a court of appeals is

sufficient to satisfy the requirements of due process.

Guentchev, 77 F.3d at 1038. As have many circuits before us,

we now join the recent trend of our sister circuits by

concluding that the BIA’s streamlining procedures do not

themselves alone violate an alien’s rights to due process.

Carriche, 335 F.3d at 1012 (Ninth Circuit); Georgis v.

Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003) (“Since we

review directly the decision of the IJ when a case comes to us

from the BIA pursuant to § 1003.1(a)(7), our ability to

conduct a full and fair appraisal of the petitioner’s case is not

compromised, and the petitioner’s due process rights are not

violated.”); Mendoza, 327 F.3d at 1289 (Eleventh Circuit);

Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003);

Albathani, 318 F.3d at 376-79 (First Circuit).

Likewise, it is not “a due process violation for the BIA to

affirm the IJ’s decision without issuing an opinion.”

Carriche, 335 F.3d at 1014. Even if the BIA would view the

factual and legal issues differently from the immigration

judge, the summary-affirmance-without-opinion rule renders

the IJ’s decision the final agency order, 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. Ashcroft, 328 F.3d at 967. Moreover, “[i]n

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.”

Albathani, 318 F.3d at 378; see also Tuhin v. Ashcroft, No.

02-2661, 2003 WL 1342995, at *2 (7th Cir. Feb. 11, 2003)

20 Denko v. INS No. 02-3746

10Moreover, the review process offered under § 1003.1(a)(7)

comports with the requirements of due process as defined in Mathews v.

Eldridge, 424 U.S. 319 (1976). “The fundamental requirement of due

process is the opportunity to be heard at a meaningful time and in a

meaningful manner.” Id. at 333 (quotation omitted). The Court identified

three factors to consider when determining whether administrative

procedures comport with due process:

First, the private interest that will be affected by the official

action; second, the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if

any, of additional or substitute procedural safeguards; and

finally, the Government’s interest, including the function

involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would entail.

Id. at 335.

Evaluating the Mathews factors in the present case, we believe that

it is clear that Denko has a substantial interest in having her in absentia

order of removal rescinded. Denko, however, has not shown how the

streamlining procedures increase the risk that she will be deprived

erroneously of her interest in remaining in the United States. See

generally Carriche, 335 F.3d at 1015 (“[T] he alleged risks of erroneous

(unpublished order) (“The BIA’s summary affirmance of a

flawed decision by an IJ, however, may lead us to conclude

that the BIA’s decision is insufficient.”). Thus, we are not

forced to guess at the rationale of the BIA, but instead we

evaluate the IJ’s explanation as that of the Board; the Board

cannot rely on an unarticulated basis for its determination.

See Fed. Power Comm’n v. Texaco, Inc., 417 U.S. 380, 397

(1974)(“An agency’s order must be upheld, if at all, on the

same basis articulated in the order by the agency itself.”). See

generally Albathani, 318 F.3d at 377 (noting that “[t]he

summary affirmance scheme does create . . . problems [for

review], but they do not render the scheme a violation of due

process or render judicial review impossible”); see also

Carriche, 335 F.3d at 1014 (“[T]he streamlining procedures

do not compromise our ability to review the INS’s decision,

to the extent we have jurisdiction to do so, because we can

review the IJ’s decision directly.”). Thus, Denko’s due

process rights are not violated simply because the BIA did not

issue a reasoned explanation.10
No. 02-3746 Denko v. INS 21

deprivation are mitigated through the regulatory structure itself.

Petitioners receive a reasoned decision from the IJ and have the option to

seek reconsideration from the BIA. . . . [I]n cases where the courts of

appeal have jurisdiction, petitioners are also entitled to an additional level

of review.”). It is not at all clear that requiring more elaborate review by

the BIA would secure Denko’s interest in not being deported.

The INS has a strong interest in its procedures for accurate, efficient,

and economical adjudication of immigration matters. The DOJ enacted

this streamlining procedure in response to statistics showing that between

1984 and 1999, appeals and motions to the Board increased more than

nine-fold. Streamlining, 64 Fed. Reg. at 56136. Other objectives of the

DOJ in enacting this procedure included promoting uniformity in the IJ

decisions, deciding cases in a timely fashion, assuring the correct

disposition of cases, and reducing the BIA’s backlog. Id. The Supreme

Court has indicated its approval of agencies fashioning their own

appropriate procedures: “‘administrative agencies and administrators will

be familiar with the industries which they regulate and will be in a better

position than federal courts or Congress itself to design procedural rules

adapted to the peculiarities of the industry and the tasks of the agency

involved.’” Vermont Yankee Nuclear Power Corp. v. Natural Res. Def.

Council, Inc., 435 U.S. 519, 525 (1978) (quotation omitted). Denko has

failed to show how more elaborate proceedings would better protect her

interest in remaining in the United States, and thus has failed to overcome

the government’s strong interest.

Separate from her attack on the statute’s constitutionality,

Denko also argues that use of the summary-affirmance

procedures in this case was improper because her case did not

meet the criteria for application of this procedure. Denko’s

main contention is that there are factual issues — whether

Wojnar’s letter was ambiguous, whether Denko would have

attended the hearing, whether Denko was unable to

understand the letter — that are not insubstantial and require

review by a three-member panel. In response, the INS asserts

that the Board’s decision to review Denko’s appeal using

summary-affirmance procedures is insulated from review.

Citing Heckler v. Chaney, 470 U.S. 821 (1985), the INS states

that because the Administrative Procedure Act (“APA”)

governs judicial review of agency actions, judicial review is

inappropriate when the “agency action is committed to

agency discretion by law.” Id. at 828 (quoting 5 U.S.C.

22 Denko v. INS No. 02-3746

§ 701(a)(2)). Interpreting this phrase using legislative history,

the Heckler Court determined that judicial review is

precluded “if the statute is drawn so that a court would have

no meaningful standard against which to judge the agency’s

exercise of discretion. In such a case, the statute (‘law’) can

be taken to have ‘committed’ the decisionmaking to the

agency’s judgment absolutely.” Id. at 830. The INS argues

that a Board member’s decision to streamline a case is a

decision that 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 (quoting Heckler, 470 U.S. at

831). Specifically, the INS argues that in order for the agency

to determine that no novel or complex issues are raised it

must evaluate the Board’s caseload — a task ideally suited to

the Board, not the court.

As an initial matter, this argument for committing this

decision to the agency’s discretion is doubtful because there

are judicially manageable standards available to a reviewing

court. Streamlining procedures are used only when the result

reached by the IJ is correct, any errors are harmless or

nonmaterial, and either the issue is controlled by precedent

and does not require application to novel facts or the factual

and legal questions are insubstantial and do not warrant threemember review. These factors straight from the regulation

itself provide the necessary guidelines for judicial review.

Moreover, the size of the BIA’s caseload — a factor which

the Board may be better equipped to assess — has no

relevance in deciding which cases are appropriate for

summary affirmance. That determination is made using the

factors identified in § 1003.1(a)(7). Moreover, as maintained

in a Seventh Circuit opinion, for many streamlined cases “it

makes no practical difference whether the BIA properly or

improperly streamlined review of [Denko’s] case,” because

when “we review directly the decision of the IJ when a case

comes to us from the BIA pursuant to [8 C.F.R.

§ 1003.1(a)(7)], our ability to conduct a full and fair appraisal
No. 02-3746 Denko v. INS 23

of [Denko’s] case is not compromised.” Georgis, 328 F.3d at

967 (footnote omitted).

Assuming, without deciding, that judicial review properly

is employed to assess whether the BIA correctly designated

a case for summary affirmance, Denko’s argument that the

summary-affirmance-without-opinion procedurewasinvoked

improperly in her case nonetheless must fail. The IJ’s

decision to deny the rescission of Denko’s in absentia order

of removal was proper because Denko failed to appear for her

scheduled hearing although she was warned on numerous

occasions that her presence was required. Moreover, because

Denko did not produce any evidence other than Wojnar’s

letter and Denko’s affidavit to establish ineffective assistance

of counsel, the factual and legal issues raised were

insubstantial. Denko clearly did not take affirmative steps to

accept Wojnar’s offer to request an attendance waiver from

the IJ, and Denko’s self-serving affidavit did not give any

indication that she would have prevailed in her removal

proceedings if only she had had competent counsel. While it

may be true that Denko misinterpreted Wojnar’s letter due to

Denko’s language barrier, the IJ’s conclusion that Denko

should have been diligent to verify with Wojnar the status of

Denko’s alleged waiver seems more than appropriate

considering the previous warnings which Denko does not

suggest she failed to comprehend. Because the facts and legal

issues of Denko’s case fit precisely within the boundaries of

§ 1003.1(a)(7), the Board properly invoked the summaryaffirmance-without-opinion procedures.

III. CONCLUSION

Based on the foregoing conclusions, we AFFIRM the

judgment of the IJ and uphold § 1003.1(a)(7)’s streamlining

procedures as constitutional and consistent with

administrative-law precedent.