2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-5-2001

Chong v. Dist Dir INS NJ

Precedential or Non-Precedential:

Docket 00-1428

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Recommended Citation

"Chong v. Dist Dir INS NJ" (2001). 2001 Decisions. Paper 203.

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Filed 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 Circuit Judge for the 

Eighth Circuit Court of Appeals, sitting by designation. 
 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 of her 

habeas petition seeking relief from a final order of removal 

by the Board of Immigration Appeals (the "Board"). Chong 

argues that the Board violated her due process rights, the 

Immigration and Nationality Act (the "INA"), and 

Immigration and Naturalization Service (the "INS") 

regulations in determining that she is ineligible for 

withholding of removal. We affirm. 

I. 

Chong, a Malaysian citizen, became a permanent resident 

of the United States in 1991. In May 1997, a federal district 

court convicted Chong of conspiracy to distribute heroin 

and possession of heroin with intent to distribute, in 

violation of 21 U.S.C. SS 846 and 841(b). The district court 

sentenced Chong to time served, which amounted to two 

years imprisonment. The court departed downward from 

the minimum seventy-month sentence due to Chong's 

cooperation with the government. 

Based on Chong's drug convictions, the INS commenced 

removal proceedings. The INS claimed that it could remove 

Chong because her convictions constituted aggravated 

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

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

1998, Chong conceded removeability and an immigration 

judge (the "IJ") ordered Chong deported to Malaysia. 

Chong subsequently filed a motion with the IJ requesting 

a hearing to determine her eligibility for withholding of 

removal. The INA provides that "the Attorney General may 

not remove an alien to a country if the Attorney General 

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 

political opinion." 8 U.S.C. S 1231(b)(3)(A) (2000). Chong 

claimed that the Malaysian government would prosecute 

her for her American drug convictions because she is ethnic 

Chinese. The government argued that Chong was ineligible 

for withholding of removal because her drug convictions 

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 aggregate 

 term of imprisonment of at least five years shall be 

 considered to have committed a particularly serious 

 crime. The previous sentence shall not preclude 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 denied 

Chong an individualized hearing, reasoning that her drug 

convictions constitute per se "particularly serious crimes." 

The IJ certified his decision to the Board. Subsequently, the 

Board issued two opinions that hold that determining 

whether an alien convicted of an aggravated felony and 

sentenced to less than five years imprisonment has been 

convicted of a "particularly serious crime" requires an 

individualized examination of the nature of the conviction, 

the sentence imposed, and the circumstances and 

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

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 the 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 ineligible 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 term that 

the INA requires to be considered a per se "particularly 

serious crime," the district court departed from the 

minimum sentence due to Chong's assistance to the 

government. The Board stated: "This is different from a 

sentence reduction due to a minor role in the offense or 

other mitigating factors." The Board also examined the 

complaint against Chong and asserted that "over several 

years, [Chong] handled money derived from selling drugs 

and arranged telephonic connections for people involved in 

the conspiracy to promote the distribution of large amounts 

of heroin." Alternatively, the Board held that Chong failed 

to show that a return to Malaysia would threaten her 

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 violated her 

due process rights and erred in determining that she 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. The 

District Court denied Chong's petition on February 29, 

2000. The District Court held that neither due process nor 

the INA required the Board to provide Chong with an

individualized hearing to determine whether she committed 

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 

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

interpretation of the INA under Chevron, U.S.A., Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).1 

Chong appeals, claiming that the Board violated (1) her due 

process rights, (2) the INA, and (3) INS regulations. 

II. 

A. Jurisdiction 

We initially must examine a number of jurisdictional 

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 Immigration 

Reform and Immigrant Responsibility Act of 1996 repeal 

district courts' jurisdiction to review aliens' habeas petitions 

filed under 28 U.S.C. S 2241(c). INS v. St. Cyr, 121 S. Ct. 

2271, 2287 (2001); accord Liang v. INS, 206 F.3d 308, 317 

(3d Cir. 2000). Second, S 2241(c)'s admonition that "habeas 

corpus shall not extend to a prisoner unless" the prisoner 

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 District 

Court, the INS deported her to Malaysia. The District Court 

denied Chong's petition on February 29, 2000. We hold 

that Chong is "in custody" within the meaning of S 2241(c) 

notwithstanding her removal, because we measure custody 

at the time Chong filed her petition. See Carafas v. 

LaVallee, 391 U.S. 234, 238 (1968); United States ex rel. 

Wojtycha v. Hopkins, 517 F.2d 420, 423 n.6 (3d Cir. 1975) 

("The `in-custody' jurisdictional requirement is determined 

as of the date the petition is filed in the district court."). 

_________________________________________________________________ 

1. The District Court denied Chong's petition on the additional ground 

that "she waived a deportation proceeding as part of her plea bargain." 

Apparently, the District Court learned of this purported waiver from the 

government's pre-sentence report. The pre-sentence report is not part of 

the record, and the government seems to discount reliance upon it as a 

means of affirming the District Court. Since we find other grounds 

sufficient to uphold the District Court's decision, we need not 

investigate 

the alleged waiver. 

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

case or controversy continues to exist despite Chong's 

deportation. Regardless of whether an Article III,S 2 case 

existed during the District Court proceedings, Chong must 

show the subsistence of a case or controversy in this 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. See St. Paul 

Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537 (1978); 

Rogin v. Bensalem Township, 616 F.2d 680, 684 (3d Cir. 

1980) ("Inasmuch as mootness would divest us of 

jurisdiction to consider this appeal, we are obligated to 

address this issue as a threshold matter.") (footnote 

omitted). 

We acknowledge that we previously have suggested that 

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 Supreme 

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 Env't, 523 

U.S. 83, 90 (1998) (stating that " `a court is bound 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 appeal is 

moot, we are required to raise issues of standing sua 

sponte if such issues exist."). Therefore, we proceed to 

examine whether Chong's deportation renders her appeal 

moot. 

Initially, we must address Chong's argument that we

should entertain her appeal because we previously 

maintained jurisdiction over a deportee's habeas petition in 

Marrero v. INS, 990 F.2d 772 (3d Cir. 1993). In Marrero, 

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, despite the 

since repealed 8 U.S.C. S 1105a(c). Id. at 777. However, 

 6 
Marrero did not address whether an Article III case or 

controversy continued to exist after the alien's deportation. 

The Supreme Court has cautioned that "drive-by 

jurisdictional rulings of this sort . . . have no precedential 

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 Constitution, 

the exercise of judicial power depends upon the existence 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 way, 

Chong must show that the standing she apparently had 

when she filed her habeas petition continues to exist now. 

See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 

397 (1980) (explaining that "mootness [is] the `doctrine of 

standing in a time frame. The requisite personal interest 

that must exist at the commencement of the litigation 

(standing) must continue throughout its existence 

(mootness).' ") (quoting Henry Monaghan, Constitutional 

Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 

(1973)). Thus, Chong must show that she has suffered, or 

is threatened with, an actual injury traceable to the INS 

that is likely to be redressed by a favorable decision. See 

Lewis, 494 U.S. at 477. 

Even when a litigant is unable to meet the requirements 

of the general mootness inquiry, the litigant may invoke 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) secondary or 

"collateral" injuries survive after resolution of the primary 

injury; (2) the issue is deemed a wrong capable of repetition 

yet evading review; (3) the defendant voluntarily ceases 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 Cir. 

1996). In this case, Chong contends that her petition 

presents a live case or controversy under the general 

mootness inquiry. Alternatively, Chong argues that 

sufficient collateral consequences flow from the Board's 

order of removal so that even though the INS already has 

deported her, we may entertain her appeal. 

 7 
The Supreme Court has explained that "an incarcerated 

convict's (or a parolee's) challenge to the validity of his 

conviction always satisfies the case-or-controversy

requirement, because the incarceration (or the restriction 

imposed by the terms of the parole) constitutes a concrete 

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 suit is to 

be maintained." Id. 

In Spencer, the Supreme Court held that insufficient 

collateral consequences resulted from the petitioner's parole 

revocation to avoid mootness. Id. at 14-17. In so holding, 

the Court criticized precedent that presumed the existence 

of collateral consequences and that accepted "the most 

generalized and hypothetical of consequences as sufficient 

to avoid mootness." Id. at 10. In particular, the Court 

criticized its decision in Sibron v. New York , 392 U.S. 40 

(1968), where the Court held that the "mere `possibility' " of 

adverse collateral consequences is sufficient to preclude a 

finding of mootness. Id. at 55 (citation omitted). 

Nevertheless, the Spencer Court did not overrule Sibron, 

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 parole 

revocation. 523 U.S. at 12. 

This Court interpreted Spencer's collateral consequences 

analysis in Steele v. Blackman, where the INS deported 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 sufficient to show 

a continuing injury and serious collateral consequences," 

we stated: 

 Erroneous conviction of an aggravated felony will have 

 several continuing and serious legal consequences for 

 [the petitioner], including serving as a permanent 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 [the 

 petitioner's] conviction did not constitute an aggravated 

 felony would alleviate many of these collateral effects. 

Id. at 134 n.4. 

We hold that sufficient collateral consequences flow 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 creates 

sufficient collateral consequences by rendering her

ineligible to return to the United States due to possible 

prosecution for felonious entry since Chong is " `able--and 

indeed required by law--to prevent such a possibility 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 been 

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 collateral 

consequences to render Chong's petition a live case or 

controversy by preventing her from entering the United 

States for ten years. See Tapia Garcia v. INS , 237 F.3d 

1216, 1218 (10th Cir. 2001) (holding that the deportee's 

"inability to reenter and reside legally in the United States 

with his family is a collateral consequence of his 

deportation because it is clearly imposed as a matter of 

law"); Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 

2000), vacated on other grounds, 121 S. Ct. 2585 (2001) 

(holding that the alien's deportation did not render his 

habeas petition moot because "he cannot be admitted into 

the United States within ten years of the date of his 

removal"). But see United States v. Mercurris , 192 F.3d 290, 

294 (2d Cir. 1999) (holding moot the deportee's habeas 

petition challenging the district court's finding that his 

marijuana convictions rendered him an aggravated felon 

since the deportee's controlled substance conviction 

prohibited him from entering the United States in the 

following ten years, regardless of his alleged status as an 

aggravated felon); Diaz v. Duckworth, 143 F.3d 345, 346-48 

(7th Cir. 1998) (holding that the petitioner's deportation 

 9 
mooted his habeas petition seeking reinstatement of"goodtime" credit and stating, in dicta, that "[w]hatever 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 disciplinary 

sanction, like Diaz"); cf. Hose v. INS, 180 F.3d 992, 996 

(9th Cir. 1999) (en banc) (holding that the deportation of 

the alien rendered her habeas petition seeking a stay of 

deportation moot). 

We recognize that Steele does not necessarily compel our 

holding because of the different factual scenarios 

presented. In Steele, the petitioner challenged the Board's 

determination that he committed an aggravated felony. 136 

F.3d at 132. The INA bars aggravated felons from entering 

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 finding 

that she committed an aggravated felony. Therefore, the 

Board's unchallenged finding that Chong committed an 

aggravated felony would bar Chong from reentering the 

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 General to 

withhold removal, since Chong already has been deported. 

Nevertheless, we suppose that, were we to reverse the 

Board's decision, the Attorney General could exercise his 

discretion and grant "withholding" of removal and allow 

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 collateral 

consequence stemming from the Board's order of removal to 

render Chong's petition justiciable under Article III, S 2. 

B. The Merits 

Turning to the merits of the appeal, Chong argues that 

the Board violated (1) her due process rights, (2) the INA, 

and (3) INS regulations. We address these arguments in 

turn. 

 10 
1. Did the Board's Actions Comply with Due Process?

Chong claims that the Board violated her due process 

rights by not giving her notice that it would decide whether 

she committed a "particularly serious crime" without 

remanding to the IJ and by not providing her with an 

opportunity to be heard on the "particularly serious 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 observed: 

 We are dealing here with procedural requirements 

 prescribed for the protection of the alien. Though 

 deportation is not technically a criminal proceeding, it 

 visits a great hardship on the individual and 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. Meticulous care 

 must be exercised lest the procedure by which he is 

 deprived of that liberty not meet the essential 

 standards of fairness. 

Bridges v. Wixon, 326 U.S. 135, 154 (1945)."The 

fundamental requirement of due process is the opportunity 

to be heard `at a meaningful time and in a meaningful 

manner.' " Mathews v. Eldridge, 424 U.S. 319, 333 (1976) 

(citation omitted). Specifically, due process requires that 

Chong: (1) be entitled to factfinding based on a record 

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 process 

rights by affirming the IJ's decision without remanding 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"would 

grind judicial and administrative gears to a screeching 

halt." Elliott v. Kiesewetter, 98 F.3d 47, 60 (3d Cir. 1996). 

 11 
Instead, administrative bodies can preserve an individual's 

due process right to be heard in many different ways. 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 evidence to the 

IJ supporting her position. The IJ created a record of the 

proceedings, which was then transmitted to the Board for 

review. In deciding that Chong had committed a 

"particularly serious crime," the Board looked at the 

specific facts of Chong's case--engaging in the 

"individualized determination" that Abdulai requires--rather 

than blindly following a categorical rule, i.e., that 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 (9th Cir. 

2000) (holding that once an alien receives a full and 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 "particularly 

serious crime" issue during a removal proceeding, we can 

see no persuasive reason for requiring that she receive a 

second hearing on the question. Nor do we think that 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 prevent 

Chong from submitting evidence relevant to the 

"particularly serious crime" analysis. However, since Chong 

believed that the Board would remand her case to the IJ for 

a hearing, Chong did not submit any evidence to the Board. 

Perhaps the Board should have provided notice to Chong 

that it would decide the "particularly serious crime" issue 

without remanding to the IJ, thereby indicating to Chong 

that she should submit any evidence she wished to be 

considered. But the Board's failure to provide notice to 

Chong does not constitute a due process violation. Chong 

had the opportunity to present any evidence concerning the 

"particularly serious crime" determination to the IJ, and the 

 12 
Board had the administrative record before it when 

deciding Chong's appeal. This procedure satisfies due 

process. See Abdulai, 239 F.3d at 549-50; see also Ladha, 

215 F.3d at 903-04 (holding that once an alien receives a 

full and fair hearing in front of an IJ, due process 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 individualized 

hearing to determine whether she committed a "particularly 

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 Chevron, 

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 

842-43 (1984). 

The INA is silent concerning how the Board should 

determine whether an alien has committed a "particularly 

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 simply notes 

that the Attorney General is not precluded "from 

determining that, notwithstanding the length of sentence 

imposed, an alien has been convicted of a particularly 

serious crime." 8 U.S.C. S 1231(b)(3)(B). In other words, 

where a court has sentenced an alien to less than five years 

for an aggravated felony, the statute grants the Attorney 

General discretion to determine whether that alien has 

committed a "particularly serious crime." 

The Board has explained that when determining whether 

a crime is "particularly serious," 

 consideration of the individual facts and circumstances 

 is appropriate . . . This inquiry does not involve an 

 examination of the respondents' family or community 

 ties, or the risk of persecution in the alien's native 

 country. To make this determination, we look to the 

 conviction records and sentencing information. 

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

 criminal case or go behind the record of conviction 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 re L-Ssimply requires that an individualized examination or 

determination of the "particularly serious crime" issue be 

conducted, not that an individualized hearing be held. We 

conclude that the Board's interpretation of S 1231(b)(3)(B) is 

reasonable because it guides and channels the Attorney 

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 inconsistent 

manner. 

Moreover, we conclude that the Board's interpretation of 

S 1231(b)(3)(B) as necessitating only an individualized 

examination of the "particularly serious crime" issue, rather 

than an individualized hearing, is a permissible one. As we 

noted supra in Part II.B.1., when an alien already has been 

provided the opportunity to mount arguments and present 

evidence on the "particularly serious crime" question during 

a live removal hearing, due process does not require a 

second hearing on the issue. All that the Constitution 

mandates is an "individualized determination," which the 

Board's construction affords. Abdulai, 239 F.3d at 549. 

Thus, we reject Chong's argument that the Board violated 

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

To the extent that Chong contends that the Board 

violated its precedent by not conducting an individualized 

determination of her case, we disagree. In fact, the Board 

did conduct an independent determination of the facts and 

circumstances of Chong's case. The Board noted that

although Chong's two-year sentence was below the five-year 

term that requires an aggravated felony to be considered a 

per se "particularly serious crime," the district court 

departed from the minimum sentence due to Chong's 

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

from a sentence reduction due to a minor role in the 

offense or other mitigating factors." The Board examined 

the complaint against Chong and asserted that "over

 14 
several years, [Chong] handled money derived from selling 

drugs and arranged telephonic connections for people 

involved in the conspiracy to promote the distribution of 

large amounts of heroin." This examination of the record 

and sentencing information is all that Board precedent 

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 provide a 

Notice of Certification. 8 C.F.R. S 3.7 (2001). The

regulations further require that the Notice of Certification 

"inform the parties that they have the right to make 

representations before the Board, including the making of 

a request for oral argument and the submission of a brief." 

Id. In this case, the Notice of Certification did not inform 

Chong that she could "make representations before the 

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 "controlling . . . 

unless it is plainly erroneous or inconsistent with the 

regulation." Bowles v. Seminole Rock & Sand Co., 325 U.S. 

410, 414 (1945). The government, although acknowledging 

that the Notice of Certification did not provide Chong 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 regard to the 

provisions of S 3.7 if it determines that the parties have 

already been given a fair opportunity to make 

representations before the Board regarding the case, 

including the opportunity [to] request oral argument 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 from 

qualifying for withholding of removal. This evidence was 

part of the administrative record before the Board when it 

decided Chong's appeal. Therefore, the government 

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

that Chong already had been given a fair opportunity to 

make representations before the Board. We disagree.

The Board could not have determined that Chong had the 

opportunity to make representations "before the Board" 

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 Appeals," 

and has a separate definition for "immigration judge." 8 

C.F.R. S 1.1(e) (2001); id. at S 1.1(l). Thus, we cannot 

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 she could 

"make representations before the Board, including the 

making of a request for oral argument and the submission 

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 its own 

regulations may result in the invalidation of the ultimate 

administrative determination," even if the regulation 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 true that 

. . . , the Secretary was not obligated to impose upon 

himself these more rigorous substantive and procedural 

standards, . . . having done so he could not, so long as the 

Regulations remained unchanged, proceed without regard 

to them."). This principle is rooted in the doctrine originated 

in United States ex rel. Accardi v. Shaughnessy , 347 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. at 267. 

Although the Accardi doctrine originally contemplated that 

an agency's failure to comply with its own rules 

automatically would nullify its actions, the Supreme Court 

since has "required that claimants demonstrate prejudice 

resulting from the violation unless `[t]he rules were not 

intended primarily to confer important procedural benefits 

upon individuals in the face of otherwise unfettered 

discretion' or unless `an agency required by rule to exercise 

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

F.3d at 267 (quoting American Farm Lines v. Black Ball 

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 request to 

reverse the Board when the IJ did not provide the petitioner 

with a Notice of Certification under S 3.7. The court stated 

that 

 when a regulation is promulgated to protect a 

 fundamental right derived from the Constitution or a 

 federal statute, and the INS fails to adhere to it, the 

 challenged deportation proceeding is invalid and a 

 remand to the agency is required . . . . On the other 

 hand, where an INS regulation does not affect 

 fundamental rights derived from the Constitution or a 

 federal statute, we believe it is best to invalidate a 

 challenged proceeding only upon a showing of 

 prejudice to the rights sought to be protected by the 

 subject regulation. 

17 F.3d at 518.2 The court then turned to decide whether 

fundamental rights with constitutional or federal statutory 

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 Waldron 

Court held that S 3.7 does not implicate a fundamental 

_________________________________________________________________ 

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 approach of "requir[ing] 

a demonstration of prejudice irrespective of whether the subject 

regulation was designed to protect a fundamental right 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)). Judge Walker's 

concurring opinion disagreed with the majority's analysis and instead 

argued that when the Board violates an INS regulation, the petitioner 

always must show that the violation caused prejudice. Waldron, 17 F.3d 

at 519-21 (Walker, J., concurring). We need not express an opinion 

regarding this dispute due to our holding that S 3.7 does not implicate 

a fundamental constitutional or statutory right. Thus, even under the 

"stricter" approach of the Waldron majority, the S 3.7 violation must have 

prejudiced Chong to warrant reversal. 

 17 
constitutional 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 constitutional or 

statutory right." Id. As the Second Circuit noted, S 3.7 

simply "addresses the procedure for notifying an alien that 

the case is being certified to the [Board.]" Id. Thus, the S 3.7 

violation must have prejudiced Chong to warrant reversal. 

Chong argues that the IJ's failure to provide her with 

notice that she could make representations before the 

Board prejudiced her because, had she been given the 

opportunity to present evidence to the Board, she would 

have submitted the Pre-Sentence Investigation Report, 

which states that Chong was a "minor participant" in the 

heroin scheme. Additionally, Chong claims that she would 

have produced several witnesses who would have testified 

to the basis by which the prosecuting authorities found 

that she was a minor participant. But since Chong fails to 

address the Board's alternate holding that she does not 

have a valid claim for withholding of removal, we hold that 

the S 3.7 violation did not prejudice Chong. 

Before the IJ, Chong conceded that her drug convictions 

constituted aggravated felonies. See 8 U.S.C. 

S 1101(a)(43)(B) (2000) (defining "aggravated felony," 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 felony 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 Attorney 

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 political 

opinion." Id. at S 1231(b)(3)(A). Chong claimed that the 

Malaysian government would threaten her freedom by 

prosecuting her for her American drug crimes because of 

her Chinese ethnicity. The Board rejected Chong's claim, 

 18 
holding 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] has not 

shown that any such prosecution would include elements 

of persecution because she is ethnic Chinese." Chong does 

not contest this holding on appeal. 

Instead, Chong claims that the Board erred in holding 

that she committed a "particularly serious crime." But by 

focusing on the Board's determination that she committed 

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 the cart 

before the horse. Chong must show that the Board erred in 

determining that her freedom would not be threatened in 

Malaysia due to her Chinese ethnicity before demonstrating 

that the exception for aliens who commit "particularly 

serious crimes" does not pertain to deny her withholding of 

removal. Thus, even though the IJ violated S 3.7, Chong's 

failure to contest the Board's finding that her freedom 

would not be threatened in Malaysia due to her Chinese 

ethnicity requires us to hold that this violation did 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 might 

decide about [one basis for the bankruptcy court's decision] 

could in no way affect the correctness of the bankruptcy 

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 petition 

because the Board's order of removal creates collateral 

consequences that render her appeal a live case or 

controversy under Article III. The Board has not violated 

Chong's due process rights or the INA. Although the IJ did 

violate INS regulations, this violation did not prejudice 

Chong. Accordingly, we AFFIRM the District Court's denial 

of Chong's petition. 

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A True Copy: 

Teste: 

 Clerk of the UnitedStates Court of Appeals 

 for the Third Circuit 

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