### 2001 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

9-5-2001 

# C hon g v . D i s t D ir IN S N

J

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 00-1428

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2001

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2001 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" C hon g v . Di s t Dir I N S N

J " (2001). 2001 D e cisio n s

. P a pe r 203.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2001/203Filed September 5, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1428

LEE MOI CHONG,

Appellant

v.

DISTRICT DIRECTOR, IMMIGRATION & NATURALIZATION SERVICE, ANDREA QUARANTILLO

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 99-cv-03466) District Judge: William G. Bassler

Argued: December 1, 2000

Before: BECKER, Chief Judge, RENDELL, and MAGILL,* Circuit Judges

(Opinion Filed: September 5, 2001)

Stanley H. Wallenstein, Esq. (Argued)

41-43 Beekman Street

3rd Floor New York, NY 10038 Counsel for Appellant

___________________________________________________ ______________ * Honorable Frank Magill, Senior United States Circ uit Judge for the Eighth Circuit Court of Appeals, sitting by designa tion.John M. McAdams, Jr., Esq.

(Argued) David W. Ogden, Assistant Attorney General Terri Jane Scadron, Senior Litigation Counsel U.S. Department of Justice

Civil Division Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Counsel for Appellee

OPINION OF THE COURT

MAGILL, Senior Circuit Judge.

Lee Moi Chong appeals the District Court's denial o f her habeas petition seeking relief from a final order o f removal by the Board of Immigration Appeals (the "Board"). Chong argues that the Board violated her due process righ ts, the Immigration and Nationality Act (the "INA"), and Immigration and Naturalization Service (the "INS") regulations in determining that she is ineligible f or withholding of removal. We affirm.

I.

Chong, a Malaysian citizen, became a permanent resi dent of the United States in 1991. In May 1997, a federa l district court convicted Chong of conspiracy to distribute h eroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. SS 846 and 841(b). The distr ict court sentenced Chong to time served, which amounted to t wo years imprisonment. The court departed downward fro m the minimum seventy-month sentence due to Chong's cooperation with the government.

Based on Chong's drug convictions, the INS commence d removal proceedings. The INS claimed that it could remove Chong because her convictions constituted aggravate d

felonies and related to a controlled substance. See 8 U.S.C.

2S 1227(a)(2)(A)(iii) (2000); id. atS 1227(a)(2)(B)( i). In August

1998, Chong conceded removeability and an immigrati on judge (the "IJ") ordered Chong deported to Malaysia

.

Chong subsequently filed a motion with the IJ reque sting a hearing to determine her eligibility for withhold ing of removal. The INA provides that "the Attorney Genera l may not remove an alien to a country if the Attorney Ge neral

decides that the alien's life or freedom would be t hreatened in that country because of the alien's race, religi on, nationality, membership in a particular social grou p, or political opinion." 8 U.S.C. S 1231(b)(3)(A) (2000) . Chong claimed that the Malaysian government would prosecu te her for her American drug convictions because she i s ethnic Chinese. The government argued that Chong was ineli gible for withholding of removal because her drug convict ions constitute a "particularly serious crime." Id. at S 1231(b)(3)(B)(ii). An exception to S 1231(b)(3)(A ) applies if

the alien, having been convicted by a final judgment of a particularly serious crime[,] is a danger to the community of the United States. . . . [A]n alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an ag gregate term of imprisonment of at least five years shall be considered to have committed a particularly serious crime. The previous sentence shall not prec lude the Attorney General from determining that, notwithstanding the length of the sentence imposed, an alien has been convicted of a particularly serious

crime.

Id. at S 1231(b)(3)(B).

After granting Chong a stay of removal, the IJ deni ed Chong an individualized hearing, reasoning that her drug convictions constitute per se "particularly serious crimes." The IJ certified his decision to the Board. Subsequ ently, the Board issued two opinions that hold that determinin g whether an alien convicted of an aggravated felony and sentenced to less than five years imprisonment has been convicted of a "particularly serious crime" require s an individualized examination of the nature of the con viction, the sentence imposed, and the circumstances and

3underlying facts of the conviction. In re L-S-, Int erim

Decision 3386, 1999 WL 219344 (BIA Apr. 16, 1999); In re S-S-, Interim Decision 3374, 1999 WL 38822 (BIA Jan . 21, 1999). Interpreting the Board's opinions to require an individualized hearing, the IJ sent a letter to the Board requesting it to remand Chong's case for a hearing. Chong also requested that the Board remand her case to th e IJ so

the IJ could make an individualized examination of her

conviction.

On July 12, 1998, the Board modified, but affirmed, the IJ's decision. The Board held that Chong was inelig ible for withholding of removal because she had committed a "particularly serious crime." The Board noted that although Chong's two-year sentence is below the five-year te rm that the INA requires to be considered a per se "particu larly serious crime," the district court departed from th e minimum sentence due to Chong's assistance to the government. The Board stated: "This is different fr om a sentence reduction due to a minor role in the offen se or other mitigating factors." The Board also examined the complaint against Chong and asserted that "over sev eral years, [Chong] handled money derived from selling d rugs and arranged telephonic connections for people invo lved in the conspiracy to promote the distribution of large amounts of heroin." Alternatively, the Board held that Chon g failed to show that a return to Malaysia would threaten he r freedom due to her Chinese ethnicity.

Chong then filed a habeas petition in the District Court under 28 U.S.C. S 2241, arguing that the Board viol ated her due process rights and erred in determining that sh e was ineligible for withholding of removal. On September 3, 1999, while Chong's habeas petition was pending in the District Court, the INS deported her to Malaysia. T he District Court denied Chong's petition on February 29, 2000. The District Court held that neither due proc ess nor the INA required the Board to provide Chong with an individualized hearing to determine whether she com mitted a "particularly serious crime." The District Court also held that the Board did not violate Chong's due process rights because the Board: (1) provided Chong with adequate notice; (2) did not deprive Chong of an opportunity to be

4heard; and (3) based its decision on a permissible

interpretation of the INA under Chevron, U.S.A., In c. v. Natural Resources Defense Council, Inc., 467 U.S. 8 37 (1984).1 Chong appeals, claiming that the Board violated (1) her due process rights, (2) the INA, and (3) INS regulation s.

II.

A. Jurisdiction

We initially must examine a number of jurisdictiona l issues to determine whether we can entertain Chong' s appeal. First, the Supreme Court recently resolved a circuit split by holding that neither the Antiterrorism and Effective Death Penalty Act of 1996 nor the Illegal Immigrati on Reform and Immigrant Responsibility Act of 1996 rep eal district courts' jurisdiction to review aliens' hab eas petitions filed under 28 U.S.C. S 2241(c). INS v. St. Cyr, 12 1 S. Ct. 2271, 2287 (2001); accord Liang v. INS, 206 F.3d 30 8, 317 (3d Cir. 2000). Second, S 2241(c)'s admonition that "habeas corpus shall not extend to a prisoner unless" the p risoner is "in custody" does not deprive us of jurisdiction to review Chong's petition. 28 U.S.C. S 2241(c) (2000). Chong filed her habeas petition on July 22, 1999. On September 3, 1999, while Chong's petition was pending in the Dis trict Court, the INS deported her to Malaysia. The Distri ct Court denied Chong's petition on February 29, 2000. We ho ld that Chong is "in custody" within the meaning of S 2241(c) notwithstanding her removal, because we measure cus tody at the time Chong filed her petition. See Carafas v

. LaVallee, 391 U.S. 234, 238 (1968); United States e x rel. Wojtycha v. Hopkins, 517 F.2d 420, 423 n.6 (3d Cir. 1975) ("The `in-custody' jurisdictional requirement is de termined as of the date the petition is filed in the distric t court.").

___________________________________________________ ______________

1. The District Court denied Chong's petition on th e additional ground that "she waived a deportation proceeding as part o f her plea bargain." Apparently, the District Court learned of this purp orted waiver from the government's pre-sentence report. The pre-sentence report is not part of the record, and the government seems to discount re liance upon it as a means of affirming the District Court. Since we fin d other grounds sufficient to uphold the District Court's decision, we need not investigate the alleged waiver.

5Finally, we must determine whether an Article III,S 2

case or controversy continues to exist despite Chon g's deportation. Regardless of whether an Article III,S 2 case existed during the District Court proceedings, Chon g must show the subsistence of a case or controversy in th is Court. See Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990). Although the parties did not raise the case or controversy issue in their original briefs, we must resolve the issue because it implicates our jurisdiction. S ee St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537 (1978); Rogin v. Bensalem Township, 616 F.2d 680, 684 (3d C ir. 1980) ("Inasmuch as mootness would divest us of jurisdiction to consider this appeal, we are obliga ted to address this issue as a threshold matter.") (footno te omitted).

We acknowledge that we previously have suggested th at

it is within our discretion to consider a mootness question not raised by the parties. See, e.g., Jersey Cent. Power & Light Co. v. Lacey, 772 F.2d 1103, 1107 n.8 (3d Cir . 1985) ("As mootness is a jurisdictional question, we may consider it sua sponte.") (emphasis added). However, the Sup reme Court has held that courts must decide Article III standing issues, even when not raised by the parties, before turning

to the merits. Steel Co. v. Citizens for a Better E nv't, 523 U.S. 83, 90 (1998) (stating that " `a court is boun d to ask and answer [a jurisdictional question] for itself, even when not otherwise suggested' ") (citation omitted); see also Steele v. Blackman, 236 F.3d 130, 134 n.4 (3d Cir. 2001) ("Although neither party argues that Steele's appea l is moot, we are required to raise issues of standing s ua sponte if such issues exist."). Therefore, we proce ed to examine whether Chong's deportation renders her app eal

moot.

Initially, we must address Chong's argument that we should entertain her appeal because we previously maintained jurisdiction over a deportee's habeas pe tition in Marrero v. INS, 990 F.2d 772 (3d Cir. 1993). In Mar rero, this Court held that it would have jurisdiction to review a deportation order after the alien has been deported if the record revealed a colorable due process claim, desp ite the since repealed 8 U.S.C. S 1105a(c). Id. at 777. Ho wever,

6Marrero did not address whether an Article III case or

controversy continued to exist after the alien's de portation. The Supreme Court has cautioned that "drive-by jurisdictional rulings of this sort . . . have no p recedential effect." Steel, 523 U.S. at 91. Thus, we think our inquiry must extend beyond Marrero.

Under Article III, S 2 of the United States Constit ution, the exercise of judicial power depends upon the exi stence of a case or controversy. DeFunis v. Odegaard, 416 U.S . 312, 316 (1974). In this case, Chong must show that her petition is not moot despite her deportation. Put another wa y, Chong must show that the standing she apparently ha d when she filed her habeas petition continues to exi st now. See United States Parole Comm'n v. Geraghty, 445 U. S. 388, 397 (1980) (explaining that "mootness [is] the `doc trine of standing in a time frame. The requisite personal in terest that must exist at the commencement of the litigati on (standing) must continue throughout its existence (mootness).' ") (quoting Henry Monaghan, Constituti onal Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). Thus, Chong must show that she has suffere d, or is threatened with, an actual injury traceable to t he INS that is likely to be redressed by a favorable decis ion. See Lewis, 494 U.S. at 477.

Even when a litigant is unable to meet the requirem ents of the general mootness inquiry, the litigant may i nvoke an exception to the mootness doctrine to gain judicial review. There are four exceptions to the mootness doctrine, so that a court will not dismiss a case as moot if: (1) sec ondary or "collateral" injuries survive after resolution of t he primary injury; (2) the issue is deemed a wrong capable of repetition yet evading review; (3) the defendant voluntarily c eases an allegedly illegal practice but is free to resume it at any time; or (4) it is a properly certified class action suit . Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1246 n.6 (3d C ir. 1996). In this case, Chong contends that her petiti on presents a live case or controversy under the gener al mootness inquiry. Alternatively, Chong argues that sufficient collateral consequences flow from the Bo ard's order of removal so that even though the INS alread y has deported her, we may entertain her appeal.

7The Supreme Court has explained that "an incarcerat ed

convict's (or a parolee's) challenge to the validit y of his conviction always satisfies the case-or-controversy requirement, because the incarceration (or the rest riction imposed by the terms of the parole) constitutes a c oncrete injury, caused by the conviction and redressable by invalidation of the conviction." Spencer v. Kemna, 523 U.S. 1, 7 (1998). However, after the convict's sentence expires, "some concrete and continuing injury other than the nowended incarceration or parole--some `collateral consequence' of the conviction--must exist if the s uit is to

be maintained." Id.

In Spencer, the Supreme Court held that insufficien t collateral consequences resulted from the petitione r's parole

revocation to avoid mootness. Id. at 14-17. In so h olding, the Court criticized precedent that presumed the ex istence of collateral consequences and that accepted "the m ost generalized and hypothetical of consequences as suf ficient to avoid mootness." Id. at 10. In particular, the C ourt criticized its decision in Sibron v. New York , 392 U.S. 40 (1968), where the Court held that the "mere `possib ility' " of adverse collateral consequences is sufficient to pr eclude a finding of mootness. Id. at 55 (citation omitted). Nevertheless, the Spencer Court did not overrule Si bron, instead distinguishing it by noting that although a court may presume collateral consequences in the context of a criminal conviction, the same cannot be said of par ole

revocation. 523 U.S. at 12.

This Court interpreted Spencer's collateral consequ ences analysis in Steele v. Blackman, where the INS depor ted the petitioner after he filed a habeas petition seeking reversal of the Board's determination that his drug convictions amounted to an aggravated felony. 236 F.3d at 132. In holding that the petitioner "alleged facts sufficie nt to show a continuing injury and serious collateral conseque nces,"

we stated:

Erroneous conviction of an aggravated felon y will have several continuing and serious legal conseq uences for [the petitioner], including serving as a pe rmanent bar preventing his return to the United States to visit his family. See 8 U.S.C. S 1182(a)(9)(A) (Supp. II 1996)

8(imposing a permanent bar on admissibility for

aggravated felons). A determination that [t he petitioner's] conviction did not constitute an aggravated felony would alleviate many of these collat eral effects.

Id. at 134 n.4.

We hold that sufficient collateral consequences flo w from the Board's order of removal to make Chong's appeal a live case or controversy under Article III, S 2. Spencer rejects Chong's claim that the Board's order of removal cre ates sufficient collateral consequences by rendering her ineligible to return to the United States due to po ssible prosecution for felonious entry since Chong is " `a ble--and indeed required by law--to prevent such a possibili ty from occurring.' " Spencer, 523 U.S. at 15 (quoting Lane v. Williams, 455 U.S. 624, 633 n.13 (1982)). However, the INA provides, in relevant part, that an alien who has b een ordered removed "and who seeks admission within 10 years of the date of such alien's departure or removal . .. is inadmissible." 8 U.S.C. S 1182(a)(9)(A)(ii) (2000). Thus, the

Board's order of removal creates sufficient collate ral consequences to render Chong's petition a live case or controversy by preventing her from entering the Uni ted States for ten years. See Tapia Garcia v. INS , 237 F.3d 1216, 1218 (10th Cir. 2001) (holding that the depor tee's "inability to reenter and reside legally in the Uni ted States with his family is a collateral consequence of his deportation because it is clearly imposed as a matt er of law"); Max-George v. Reno, 205 F.3d 194, 196 (5th C ir. 2000), vacated on other grounds, 121 S. Ct. 2585 (2 001) (holding that the alien's deportation did not rende r his habeas petition moot because "he cannot be admitted into the United States within ten years of the date of h is removal"). But see United States v. Mercurris , 192 F.3d 290, 294 (2d Cir. 1999) (holding moot the deportee's hab eas petition challenging the district court's finding t hat his marijuana convictions rendered him an aggravated fe lon since the deportee's controlled substance convictio n prohibited him from entering the United States in t he following ten years, regardless of his alleged stat us as an aggravated felon); Diaz v. Duckworth, 143 F.3d 345, 346-48 (7th Cir. 1998) (holding that the petitioner's depo rtation

9mooted his habeas petition seeking reinstatement of "goodtime" credit and stating, in dicta, that "[w]hateve r is left of Sibron is too little for a deportee to invoke, even if the deportee is complaining about a conviction, and not a parole revocation, like Spencer, or a prison discip linary sanction, like Diaz"); cf. Hose v. INS, 180 F.3d 99 2, 996 (9th Cir. 1999) (en banc) (holding that the deporta tion of the alien rendered her habeas petition seeking a st ay of deportation moot).

We recognize that Steele does not necessarily compe l our holding because of the different factual scenarios presented. In Steele, the petitioner challenged the Board's determination that he committed an aggravated felon y. 136 F.3d at 132. The INA bars aggravated felons from en tering the United States for ten years. 8 U.S.C. S 1182(a) (9)(A)(ii). Thus, a determination that the Steele petitioner's conviction did not constitute an aggravated felony could allow the petitioner to reenter the United States.

By contrast, Chong does not contest the Board's fin ding that she committed an aggravated felony. Therefore, the Board's unchallenged finding that Chong committed a n aggravated felony would bar Chong from reentering t he United States. Moreover, if we reversed the Board's finding that Chong committed a "particularly serious crime, " it seemingly would be too late for the Attorney Genera l to withhold removal, since Chong already has been depo rted. Nevertheless, we suppose that, were we to reverse t he Board's decision, the Attorney General could exerci se his discretion and grant "withholding" of removal and a llow Chong to reenter the United States. Accordingly, we hold that Chong's inability to reenter the United States for ten years after her deportation is a sufficient collate ral consequence stemming from the Board's order of remo val to render Chong's petition justiciable under Article I II, S 2.

B. The Merits

Turning to the merits of the appeal, Chong argues t hat the Board violated (1) her due process rights, (2) the INA, and (3) INS regulations. We address these arguments in

turn.

101. Did the Board's Actions Comply with Due Process?

Chong claims that the Board violated her due proces s rights by not giving her notice that it would decid e whether she committed a "particularly serious crime" withou t remanding to the IJ and by not providing her with a n opportunity to be heard on the "particularly seriou s crime"

issue. We review de novo whether the Board violated Chong's due process rights. See Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000).

Aliens facing removal are entitled to due process. Chlomos v. United States Dep't of Justice, INS, 516 F.2d 310, 313 (3d Cir. 1975). The Supreme Court has obse rved:

We are dealing here with procedural require ments prescribed for the protection of the alien. Though deportation is not technically a criminal p roceeding, it visits a great hardship on the individual a nd deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty-- at times a

most serious one--cannot be doubted. Meticu lous care must be exercised lest the procedure by whi ch he is deprived of that liberty not meet the essen tial

standards of fairness.

Bridges v. Wixon, 326 U.S. 135, 154 (1945)."The fundamental requirement of due process is the oppor tunity to be heard `at a meaningful time and in a meaningf ul manner.' " Mathews v. Eldridge, 424 U.S. 319, 333 ( 1976) (citation omitted). Specifically, due process requi res that Chong: (1) be entitled to factfinding based on a re cord produced before the Board and disclosed to her; (2) be allowed to make arguments on her own behalf; and (3 ) have the right to an individualized determination of her interests. See Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001).

Chong contends that the Board violated her due proc ess rights by affirming the IJ's decision without reman ding to the IJ for an individualized hearing. We disagree. An individual's due process right to be heard does not ensure a hearing in all contexts, as such a requirement"wo uld grind judicial and administrative gears to a screec hing halt." Elliott v. Kiesewetter, 98 F.3d 47, 60 (3d C ir. 1996).

11Instead, administrative bodies can preserve an indi vidual's

due process right to be heard in many different way s. Id.

In this case, Chong received a live hearing before the IJ, at which point she was afforded the opportunity to argue that her drug convictions did not rise to the level of "particularly serious crimes," and to present evide nce to the IJ supporting her position. The IJ created a record of the proceedings, which was then transmitted to the Boar d for review. In deciding that Chong had committed a "particularly serious crime," the Board looked at t he specific facts of Chong's case--engaging in the "individualized determination" that Abdulai require s--rather than blindly following a categorical rule, i.e., th at all drug convictions qualify as "particularly serious crimes ." 239 F.3d at 549. Due process requires no more. See id. at 549- 50; see also Ladha v. INS, 215 F.3d 889, 903-04 (9t h Cir. 2000) (holding that once an alien receives a full a nd fair hearing in front of an IJ, due process is satisfied ).

Holding otherwise would give Chong the proverbial "second bite at the apple." Once an alien has had a chance to offer evidence and raise arguments on the "parti cularly serious crime" issue during a removal proceeding, w e can see no persuasive reason for requiring that she rec eive a second hearing on the question. Nor do we think tha t due process necessitates such a redundant procedural

measure.

Chong also argues that the Board violated her due process rights by not giving her the opportunity to submit evidence to the Board. In fact, the Board did not p revent Chong from submitting evidence relevant to the "particularly serious crime" analysis. However, sin ce Chong

believed that the Board would remand her case to th e IJ for a hearing, Chong did not submit any evidence to the Board. Perhaps the Board should have provided notice to Ch ong that it would decide the "particularly serious crim e" issue without remanding to the IJ, thereby indicating to Chong that she should submit any evidence she wished to b e considered. But the Board's failure to provide noti ce to Chong does not constitute a due process violation. Chong had the opportunity to present any evidence concern ing the "particularly serious crime" determination to the I J, and the

12Board had the administrative record before it when

deciding Chong's appeal. This procedure satisfies d ue process. See Abdulai, 239 F.3d at 549-50; see also Ladha, 215 F.3d at 903-04 (holding that once an alien rece ives a full and fair hearing in front of an IJ, due proces s is satisfied).

2. Did the Board Err in Interpreting the INA?

Chong argues that the Board violated 8 U.S.C. S 1231(b)(3)(B) by not granting her an individualiz ed hearing to determine whether she committed a "parti cularly

serious crime." We accord Chevron deference to the Board's interpretation of the INA. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). Our inquiry, therefore, is limited to determining whether the INA is silent or ambiguous with respect to what constitutes a "particularly serious crime," and, if so, whether the Board's answer is based on a permissible construction of S 1231(b)(3)(B). See Ch evron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 46 7 U.S. 837, 842-43 (1984).

The INA is silent concerning how the Board should determine whether an alien has committed a "particu larly

serious crime" when a court has convicted the alien of an aggravated felony for which the court sentenced the alien to less than five years imprisonment. The statute simp ly notes that the Attorney General is not precluded "from determining that, notwithstanding the length of sen tence imposed, an alien has been convicted of a particula rly serious crime." 8 U.S.C. S 1231(b)(3)(B). In other words,

where a court has sentenced an alien to less than f ive years for an aggravated felony, the statute grants the At torney

General discretion to determine whether that alien has committed a "particularly serious crime."

The Board has explained that when determining wheth er a crime is "particularly serious,"

consideration of the individual facts and c ircumstances is appropriate . . . This inquiry does not involve an examination of the respondents' family or c ommunity ties, or the risk of persecution in the ali en's native country. To make this determination, we loo k to the conviction records and sentencing informati on.

13Further, we do not engage in a retrial of t he alien's

criminal case or go behind the record of co nviction to redetermine the alien's innocence or guilt.

In re L-S-, Interim Decision 3386, 1999 WL 219344 ( BIA Apr. 16, 1999). As this language demonstrates, In r e L-Ssimply requires that an individualized examination or determination of the "particularly serious crime" i ssue be conducted, not that an individualized hearing be he ld. We conclude that the Board's interpretation of S 1231( b)(3)(B) is reasonable because it guides and channels the Attor ney General's discretion to determine whether an alien like Chong has committed a "particularly serious crime," thereby helping to ensure that the Attorney General does not make this determination in an arbitrary or inco nsistent

manner.

Moreover, we conclude that the Board's interpretati on of S 1231(b)(3)(B) as necessitating only an individual ized examination of the "particularly serious crime" iss ue, rather than an individualized hearing, is a permissible on e. As we noted supra in Part II.B.1., when an alien already has been provided the opportunity to mount arguments and pre sent evidence on the "particularly serious crime" questi on during a live removal hearing, due process does not requir e a second hearing on the issue. All that the Constitut ion mandates is an "individualized determination," whic h the Board's construction affords. Abdulai, 239 F.3d at 549. Thus, we reject Chong's argument that the Board vio lated S 1231(b)(3)(B).

To the extent that Chong contends that the Board violated its precedent by not conducting an individ ualized determination of her case, we disagree. In fact, th e Board did conduct an independent determination of the fac ts and circumstances of Chong's case. The Board noted that although Chong's two-year sentence was below the fi ve-year term that requires an aggravated felony to be consi dered a per se "particularly serious crime," the district c ourt departed from the minimum sentence due to Chong's

assistance to the INS. The Board stated: "This is d ifferent

from a sentence reduction due to a minor role in th e offense or other mitigating factors." The Board exa mined the complaint against Chong and asserted that "over

14several years, [Chong] handled money derived from s elling

drugs and arranged telephonic connections for peopl e involved in the conspiracy to promote the distribut ion of large amounts of heroin." This examination of the r ecord and sentencing information is all that Board preced ent requires.

3. Did the Board Violate INS Regulations?

Finally, Chong claims that the Board violated S 3.7 of the INS regulations. In this case, the IJ certified his decision to

the Board. When an IJ knows at the time he issues a decision that he will certify the case to the Board , as is the case here, the INS regulations require the IJ to pr ovide a Notice of Certification. 8 C.F.R. S 3.7 (2001). The regulations further require that the Notice of Cert ification "inform the parties that they have the right to mak e representations before the Board, including the mak ing of a request for oral argument and the submission of a brief." Id. In this case, the Notice of Certification did n ot inform Chong that she could "make representations before t he

Board." Id.

"[O]ur standard of review is even more deferential when an agency is interpreting a regulation rather than a statute that it administers." Abdulai, 239 F.3d at 552. An agency's interpretation of its own regulation is "controllin g . . . unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock & Sand Co., 32 5 U.S. 410, 414 (1945). The government, although acknowled ging that the Notice of Certification did not provide Ch ong with the notice that S 3.7 requires, points out that the INS regulations state that the "Board in its discretion may review any such case by certification without regar d to the provisions of S 3.7 if it determines that the parti es have already been given a fair opportunity to make representations before the Board regarding the case

, including the opportunity [to] request oral argumen t and to submit a brief." 8 C.F.R. S 3.1(c). The government notes that Chong filed a memorandum with the IJ in which she argued that her convictions did not preclude her fr om qualifying for withholding of removal. This evidenc e was part of the administrative record before the Board when it decided Chong's appeal. Therefore, the government

15concludes, the Board could have determined, underS 3.1(c),

that Chong already had been given a fair opportunit y to make representations before the Board. We disagree.

The Board could not have determined that Chong had the opportunity to make representations "before the Boa rd" because at the time the IJ certified his decision, Chong had not submitted any documents to the Board. The INA defines the "Board" as "the Board of Immigration Ap peals," and has a separate definition for "immigration judg e." 8 C.F.R. S 1.1(e) (2001); id. at S 1.1(l). Thus, we c annot consider documents Chong submitted to the IJ to be "representations before the Board." Id. at S 3.7. Accordingly, the IJ violated S 3.7 by not informing Chong that s he could "make representations before the Board, including t he making of a request for oral argument and the submi ssion

of a brief." Id.

However, we hold that to warrant reversal, the S 3. 7 violation must have prejudiced Chong. "[A]n agency' s failure to afford an individual safeguard required under it s own regulations may result in the invalidation of the u ltimate administrative determination," even if the regulati on is not constitutionally mandated. United States v. Morgan, 193 F.3d 252, 266 (4th Cir. 1999); see also Service v. Dulles, 354 U.S. 363, 388 (1957) ("While it is of course tr ue that . . . , the Secretary was not obligated to impose u pon himself these more rigorous substantive and procedu ral standards, . . . having done so he could not, so lo ng as the Regulations remained unchanged, proceed without reg ard to them."). This principle is rooted in the doctrin e originated in United States ex rel. Accardi v. Shaughnessy , 3 47 U.S. 260 (1954), where the Supreme Court vacated a Board deportation order because the procedures leading to the order failed to comply with INS regulations. Id. a t 267. Although the Accardi doctrine originally contemplat ed that an agency's failure to comply with its own rules automatically would nullify its actions, the Suprem e Court since has "required that claimants demonstrate prej udice resulting from the violation unless `[t]he rules we re not intended primarily to confer important procedural b enefits upon individuals in the face of otherwise unfettere d discretion' or unless `an agency required by rule t o exercise

16independent discretion has failed to do so.' " Morg an, 193

F.3d at 267 (quoting American Farm Lines v. Black B all Freight Serv., 397 U.S. 532, 538-39 (1970)).

In Waldron v. INS, 17 F.3d 511 (2d Cir. 1994), the Second Circuit rejected the habeas petitioner's req uest to reverse the Board when the IJ did not provide the p etitioner

with a Notice of Certification under S 3.7. The cou rt stated

that

when a regulation is promulgated to protect a fundamental right derived from the Constitu tion or a federal statute, and the INS fails to adher e to it, the challenged deportation proceeding is invali d and a remand to the agency is required . . . . On the other hand, where an INS regulation does not affe ct fundamental rights derived from the Constit ution or a federal statute, we believe it is best to i nvalidate a challenged proceeding only upon a showing o f prejudice to the rights sought to be protec ted by the subject regulation.

17 F.3d at 518.2 The court then turned to decide wh ether fundamental rights with constitutional or federal s tatutory origins are implicated by S 3.7's admonition that " [i]f it is

known at the time the initial decision is made that the case will be certified, the notice of such certification shall be

included in such decision." 8 C.F.R. S 3.7. The Wal dron Court held that S 3.7 does not implicate a fundamen tal

___________________________________________________ ______________

2. In reaching its conclusion that some violations of INS regulations require reversal without necessitating a showing of prejudice, a majority of the Waldron panel rejected the Ninth Circuit's a pproach of "requir[ing] a demonstration of prejudice irrespective of whethe r the subject regulation was designed to protect a fundamental ri ght derived from the

Constitution or a federal statute." 17 F.3d at 518 (citing United States

v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979)). Jud ge Walker's concurring opinion disagreed with the majority's an alysis and instead argued that when the Board violates an INS regulati on, the petitioner always must show that the violation caused prejudic e. Waldron, 17 F.3d at 519-21 (Walker, J., concurring). We need not exp ress an opinion regarding this dispute due to our holding that S 3. 7 does not implicate a fundamental constitutional or statutory right. Th us, even under the "stricter" approach of the Waldron majority, the S 3.7 violation must have prejudiced Chong to warrant reversal.

17constitutional or statutory right, as it primarily addresses

the procedure for notifying an alien that the case is being

certified to the Board. 17 F.3d at 518.

We agree with the Second Circuit that S 3.7 is"not grounded in any underlying fundamental constitution al or statutory right." Id. As the Second Circuit noted, S 3.7 simply "addresses the procedure for notifying an al ien that the case is being certified to the [Board.]" Id. Th us, the S 3.7 violation must have prejudiced Chong to warrant rev ersal.

Chong argues that the IJ's failure to provide her w ith notice that she could make representations before t he Board prejudiced her because, had she been given th e opportunity to present evidence to the Board, she w ould have submitted the Pre-Sentence Investigation Repor t, which states that Chong was a "minor participant" i n the heroin scheme. Additionally, Chong claims that she would have produced several witnesses who would have test ified to the basis by which the prosecuting authorities f ound that she was a minor participant. But since Chong f ails to address the Board's alternate holding that she does not have a valid claim for withholding of removal, we h old that the S 3.7 violation did not prejudice Chong.

Before the IJ, Chong conceded that her drug convict ions constituted aggravated felonies. See 8 U.S.C. S 1101(a)(43)(B) (2000) (defining "aggravated felon y," in part, as "illicit trafficking in a controlled substance.

. . , including a drug trafficking crime"). Since the INA provides that an alien who is convicted of an aggravated fel ony is deportable, the IJ correctly found Chong subject to removeability. See id. at S 1227(a)(2)(iii).

Chong sought to avoid deportation by requesting withholding of removal. The INA prohibits the Attor ney General from removing an alien if he "decides that the

alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or politic al opinion." Id. at S 1231(b)(3)(A). Chong claimed tha t the Malaysian government would threaten her freedom by prosecuting her for her American drug crimes becaus e of her Chinese ethnicity. The Board rejected Chong's c laim,

18holding that she "does not have a valid claim for

withholding of removal because she merely fears a subsequent prosecution in Malaysia due to her drug trafficking offense in the United States. [Chong] h as not shown that any such prosecution would include eleme nts of persecution because she is ethnic Chinese." Chon g does not contest this holding on appeal.

Instead, Chong claims that the Board erred in holdi ng that she committed a "particularly serious crime." But by focusing on the Board's determination that she comm itted a "particularly serious crime," rather than on the Board's holding that her freedom would not be threatened in Malaysia due to her Chinese ethnicity, Chong puts t he cart before the horse. Chong must show that the Board er red in determining that her freedom would not be threatene d in Malaysia due to her Chinese ethnicity before demons trating that the exception for aliens who commit "particula rly serious crimes" does not pertain to deny her withho lding of removal. Thus, even though the IJ violated S 3.7, C hong's failure to contest the Board's finding that her fre edom would not be threatened in Malaysia due to her Chin ese ethnicity requires us to hold that this violation d id not prejudice her. See In re Public Serv. Co. of N.H., 879 F.2d 987, 989-90 (1st Cir. 1989) (per curiam) (affirming because the appellant challenged only one of two alternate bases for the bankruptcy court's decision, "for whatever we m ight decide about [one basis for the bankruptcy court's decision] could in no way affect the correctness of the bankr uptcy court's denial of relief "); MacKay v. Pfeil, 827 F .2d 540, 542 n.2 (9th Cir. 1987).

III.

We have jurisdiction to hear Chong's habeas petitio n because the Board's order of removal creates collat eral consequences that render her appeal a live case or controversy under Article III. The Board has not vi olated Chong's due process rights or the INA. Although the IJ did violate INS regulations, this violation did not pre judice Chong. Accordingly, we AFFIRM the District Court's denial of Chong's petition.

19A True Copy:

Teste:

Clerk of the UnitedStates Court of Appeals

for the Third Circuit

20