United States Court of Appeals

For the First Circuit

No. 02-2395

LAHOUARI HAOUD,

Petitioner,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF THE FINAL ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

Before

 Howard, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Senior Circuit Judge.

Daniel F. Cashman, with whom Cashman & Lovely, P.C., and

Susanna L. Shafer, were on brief for Petitioner.

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

Wettstein, were on brief for American Immigration Law Foundation,

Iris Gomez, was on brief for Massachusetts Law Reform Institute,

and Harvey Kaplan, with whom Kaplan, O'Sullivan & Friedman, were

on brief for American Immigration Lawyers Association, New

England Chapter, amicus curiae.

Virginia M. Lum, Attorney, with whom Peter D. Keisler,

Assistant Attorney General, and Terri J. Scadron, Assistant

Director, were on brief for Respondent.

November 25, 2003
-2-

STAHL, Senior Circuit Judge. Appellant Lahouari Haoud

appeals from the Board of Immigration Appeals' (the "Board")

affirmance without opinion of an Immigration Judge's order denying

Haoud's claims for relief from removal under the Immigration and

Nationality Act, 8 U.S.C. §§ 1101 et seq. As the Board's decision

provides an inadequate basis for judicial review, we remand to the

Board for further proceedings.

I. BACKGROUND

Haoud is a native and citizen of Algeria. He entered the

United States on a six-month visa in 1995 and stayed unlawfully

after the expiration of the visa. On December 30, 1999, the FBI

and local police came to his home in East Boston, Massachusetts,

and arrested him for carrying a fraudulent green card. Law

enforcement also questioned him about terrorist activities.

Although a criminal charge was never filed against Haoud, numerous

newspaper articles and television broadcasts linked him to the

general terrorist scare on the eve of the new millennium,

specifically with regard to Algerians arrested in Boston who had

been questioned about their connections with terrorist groups such

as the Armed Islamic Group of Algeria ("GIA"). 

Because of the fraudulent green card and the fact that he

had overstayed his visa, Haoud was held at an INS detention center

throughout January 2000. On March 24, 2000, he submitted an

application and supporting affidavit for asylum, withholding of
-3-

removal under 8 U.S.C. § 1231(b)(3), withholding or deferral of

removal under Article 3 of the United Nations Convention Against

Torture, and voluntary departure under 8 U.S.C. § 1229a. He

claimed that because his arrest for possessing a false green card

had generated local and nationwide publicity implying that he was

associated with an Algerian terrorist group, he feared persecution

if he was returned to Algeria. At his asylum hearing, in addition

to his own testimony, documentation of his arrest and the

subsequent media coverage, Haoud produced Dr. John Entelis, an

expert in Algerian politics from Fordham University, who testified

that because of the paranoid climate pervading Algerian society and

its government, Haoud would be in danger in Algeria as the

government, knowing of the claims made against him in the United

States, would consider him a terrorist or enemy of the state.

The Immigration Judge ("IJ") denied all four of Haoud's

applications. He decided that Haoud's asylum application was

untimely filed and that he failed to establish changed

circumstances to excuse that untimeliness. See 8 U.S.C. §§

1158(a)(2)(B) & (D). Alternatively, the IJ found that Haoud's

application failed to demonstrate either past persecution or a

well-founded fear of future persecution based on a reasonable

possibility that he would suffer harm in Algeria. The IJ explained

that Haoud could not use the media reports to "manufacture an
-4-

asylum claim" and that Dr. Entelis's testimony was too speculative

to support the claim.

Shortly after the IJ made these determinations, the Board

decided a case, In re Amine Touarsi, A78 161 736 (BIA 12/28/2000),

involving another Algerian man who was arrested in Boston the same

night as Haoud on the same suspicion of terrorism. Although the IJ

denied Touarsi's asylum application, the Board on appeal reversed

upon concluding that Touarsi had "a well-founded fear of

persecution in Algeria based on imputed political opinion." 

Haoud timely appealed the IJ's decision to the Board. In

his appeal, Haoud raised Touarsi. Notwithstanding that apparent

precedent, the Board affirmed the IJ's decision without opinion

under 9 C.F.R. § 1003.1(e)(4).

II. DISCUSSION

On appeal, the parties raise three primary issues: (1)

whether we have jurisdiction to review the Board's decision; (2)

whether the IJ's decision was in error; and (3) whether the Board's

affirmance without opinion (AWO) violated the Board's own

regulatory procedure. Because we decide this appeal on issue (3),

we discuss issues (1) and (2) only as they bear on (3).

For a determination by the Board of Immigration Appeals

of statutory eligibility for relief from deportation, we review

questions of law de novo. See Civil v. INS, 140 F.3d 52, 54 (1st

Cir. 1998). While deference is given to an agency's interpretation
18 U.S.C. § 1158(a)(2)(B) provides

Subject to subparagraph (D), paragraph (1) shall not apply to

an alien unless the alien demonstrates by clear and convincing

evidence that the application has been filed within 1 year after

the date of the alien's arrival in the United States.

28 U.S.C. § 1158(a)(3) provides

No Court shall have jurisdiction to review any determination

of the Attorney General under paragraph (2).

38 U.S.C. § 1158(a)(2)(D) provides

An application for asylum of an alien may be considered,

notwithstanding subparagraphs (B) and (C), if the alien

demonstrates to the satisfaction of the Attorney General either the

existence of changed circumstances which materially affect the

applicant's eligibility for asylum or extraordinary circumstances

relating to the delay in filing an application within the period

specified in subparagraph (B).

-5-

of the underlying statute, such interpretation must be "in

accordance with administrative law principles." Debab v. INS, 163

F.3d 21, 24 (1st Cir. 1998).

A. Jurisdiction

The government contends that we lack jurisdiction to

review the IJ's denial of Haoud's asylum application because Haoud

failed to file his application within one year of his arrival in

the United States.1 The government also argues that under 8 U.S.C.

§ 1158(a)(3), we are foreclosed from reviewing a determination that

an alien failed to timely file an asylum application.

2 Haoud

concedes that his asylum application was untimely, but argues that

he presented "extraordinary circumstances" that excuse the delay,

pursuant to 8 U.S.C. § 1158(a)(2)(D).3
4We are not similarly barred from reviewing the IJ's denial of

Haoud's applications for withholding of removal, Convention Against

Torture protection, and voluntary departure. In his brief,

however, Haoud has not asked us to do so, and we therefore refrain

from discussing these issues. 

-6-

Our sister circuits agree that 8 U.S.C. § 1158(a)(3) bars

judicial review of the Board's decision as to the timeliness of an

asylum application.4 See Tarrawally v. Ashcroft, 338 F.3d 180, 185

(3d Cir. 2003); Tsevegmid v. Ashcroft, 318 F.3d 1226, 1230 (10th

Cir. 2003); Fahim v. U.S. Attorney General, 278 F.3d 1216, 1217

(11th Cir. 2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001).

The Tenth Circuit in Tsevegmid explained:

This court generally has jurisdiction to review the

denial of any asylum request. See 8 U.S.C. §

1252(a)(2)(B)(ii). . . . However, our jurisdiction to

review a [Board] determination on the timeliness of an

application for asylum is limited by statute. Section

1158(a)(3) expressly provides that the courts do not have

"jurisdiction to review any determination" on whether the

alien filed his application within a year of entry or

whether "changed circumstances" exist "which materially

affect the applicant's eligibility for asylum or

extraordinary circumstances relating to the delay in

filing an application." 

318 F.3d at 1229. 

Though we concur that 8 U.S.C. § 1158(a)(3) could bar our

review of the IJ's determination of the timeliness of Haoud's

asylum application, resolution of this issue does not dispose of

this case. As discussed infra, we must determine on what grounds,

whether it be untimeliness or the merits of Haoud's asylum claim,

the Board affirmed the IJ's decision. If the Board affirmed the
-7-

IJ's decision on the merits of Haoud's persecution claims, but

rejected the IJ's conclusion as to the untimeliness and "changed

circumstances" issue, then we have jurisdiction over this appeal.

B. The IJ's Decision

Haoud challenges the IJ's decision on the merits, arguing

that the IJ made erroneous conclusions of law that were neither

harmless nor immaterial, and hence led to an incorrect result in

denying him asylum. Here the Board's decision effectively prevents

a reviewing court from knowing whether the affirmance of the IJ's

decision is reviewable or non-reviewable. The AWO cannot be used

to deny our legitimate review power if we are left without a proper

basis to determine our own jurisdiction or to evaluate the Board's

own critical analysis, see infra. Accordingly, we refrain at this

time from discussing the merits of the IJ's decision. 

C. The Board's Affirmance Without Opinion

The Board "has the duty to follow its own federal

regulations." Nelson v. INS, 232 F.3d 258, 262 (1st Cir. 2000);

see also Saakian v. INS, 252 F.3d 21, 25-27 (1st Cir. 2001).

Failure to do so can result in the reversal of an agency order and

a new hearing. Id.

Haoud argues that the Board failed to follow its own

regulatory procedure when it issued the affirmance without opinion

(AWO) in this case. The Attorney General adopted the AWO procedure

at issue in 1999. Rather than the usual three-member review, an
-8-

AWO allows for review of a case by a single member, who then

affirms the IJ's decision with the statement, "The Board affirms,

without opinion, the result of the decision below." 8 C.F.R.

§ 1003.1(a)(7)(iii). Unlike decisions rendered after review by a

three-member panel, a single Board member acting under 8 C.F.R. 

§ 1003.1(e)(4) is prohibited from explaining his decision on the

merits in an AWO. Moreover, the regulation defines an AWO as a

Board approval of only the "result reached in the decision below."

8 C.F.R. § 1003.1(e)(4). The AWO does not "necessarily imply

approval of all the reasoning" of the IJ's decision, although it

does signify the Board's conclusion that any errors were harmless

or immaterial. Id. The Board member can issue an AWO only if he

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 issues on

appeal are squarely controlled by existing Board or

federal court precedent and do not involve the

application of precedent to a novel fact situation; or

(B) The factual and legal issues raised on appeal are not

so substantial that the case warrants the issuance of a

written opinion in the case.

Id.

The government strenuously argues that the Board's

decision to streamline a particular case is committed to agency

discretion and is not subject to judicial review. See 5 U.S.C. §

701(a)(2); Heckler v. Chaney, 470 U.S. 821, 830 (1985). Where a

law "is drawn so that a court would have no meaningful standard
-9-

against which to judge the agency's exercise of discretion,"

Congress is assumed to have "'committed' the decision making to the

agency's judgment absolutely." Heckler, 470 U.S. at 830-32.

Heckler involved a decision by the federal Food and Drug

Administration to refrain from instituting enforcement proceedings

with respect to drugs used for lethal injections to carry out the

death penalty. The Supreme Court found the FDA's decision

unreviewable because it dealt with "complicated balancing of

factors" that were "peculiarly within [the agency's] expertise."

Id. at 831. The Court found no applicable legal standard or "law"

in the Federal Food Drug and Cosmetic Act against which a court

could legitimately review the FDA's decision not to commence

enforcement proceedings. See id.

Here, the Board's own regulation provides more than

enough "law" by which a court could review the Board's decision to

streamline. As 8 C.F.R. § 1003.1(e)(4) sets out supra, the Board

cannot affirm an IJ's decision without opinion if the decision is

incorrect, errors in the decision are not harmless or immaterial,

the issues on appeal are not squarely controlled by Board or

federal court precedent and involve the application of precedent to

a novel fact situation, or the issues raised on appeal are so

substantial that a full written opinion is necessary. Especially

when the Board's review of an IJ's decision often hinges on Circuit

court precedent, we are well-equipped, both statutorily and
-10-

practically, to review a decision to streamline. See Goncalves v.

Reno, 144 F.3d 110, 127 (1st Cir. 1998), cert. denied, 526 U.S.

1004 (1999) (upholding judiciary's role in determining whether an

agency's interpretation of a statute is permissible).

The government also postulates that the criteria of

8 C.F.R. § 1003.1(e)(4) were met here and that there was no harmful

error requiring review by a three-member panel of the Board.

Without an explanation of the reasons for the decision, we cannot

determine whether the Board--applying the proper standards under 8

C.F.R. § 1003.1(e)(4)--adequately and correctly evaluated each of

the criteria. Here, we do not know which of the alternatives

outlined in the regulation was applied to affirm the IJ's decision,

which itself was based on multiple grounds. Put another way,

presently, we have no way of knowing whether and how the Board

applied the standards of 8 C.F.R. § 1003.1(e)(4) to either or both

of the IJ's conclusions on (1) the "changed circumstances"

exception to the time bar and (2) the issues of past and future

persecution that constitute the merits of Haoud's asylum

application. The AWO in this case gives us no guidance as to

whether the Board affirmed the IJ's decision on a non-reviewable

basis, i.e. untimeliness, or a reviewable basis, i.e. the merits of

Haoud's asylum claim. 

Moreover, there is no way we can determine from the AWO

whether the Board reviewed the case and found a legitimate way of
-11-

distinguishing the Touarsi case in denying Haoud's asylum claim.

We have stated that "[w]hen the [Board] does not render its own

opinion, . . ., and either defers [to] or adopts the opinion of the

IJ, a Court of Appeals must then review the decision of the IJ."

Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003), quoting Gao v.

Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002); Herbert v. Ashcroft,

325 F.3d 68, 71 (1st Cir. 2003). This approach is inapposite here

because the IJ never had the opportunity to consider Touarsi, which

was rendered following the IJ's decision. There, the Board granted

another Algerian national asylum on very similar facts and only

four months after the IJ's denial of Haoud's application. Like

Haoud, Touarsi had been arrested on December 30, 1999, by federal

authorities in a nationwide investigation of a suspected terrorist

plot against targets in the United States by the GIA. News of the

investigation, including Touarsi's name, had been widely reported

in the local and national press. In re Amine Touarsi, A78 161 736

at 1-2. The Board held that Touarsi "had a well-founded fear of

persecution in Algeria on account of the political opinion that

would be imputed to him by that country's government, in that he

would be viewed and treated as an individual who sympathized with

or supported the GIA or another Islamist terrorist group." Id. at

4. 

Notwithstanding the fact that Haoud brought Touarsi to

its attention, the Board failed to render a decision consistent
-12-

with or fully explained as reasonably departing from its own

precedent in Touarsi. As the regulation clearly sets out, "Except

as they may be modified or overruled by the Board or the Attorney

General, decisions of the Board shall be binding on all officers

and employees of the Service or Immigration Judges in the

administration of the Act." 8 C.F.R. § 1003.1(g). Among the

points raised by Haoud with regard to the precedential value of

Touarsi, besides the obvious factual similarities, are (1) the

Board's conclusion in Touarsi that asylum could be granted based on

incidents that occurred solely in the United States, a proposition

rejected by the IJ in Haoud's case; and (2) factual findings made

by the Board in Touarsi that mirror the rejected testimony of Dr.

Entelis.

The Board's use of the AWO procedure in this case runs

counter to what we have warned against in the past:

[A]dministrative agencies must apply the same basic rules

to all similarly situated supplicants. An agency cannot

merely flit serendipitously from case to case, like a bee

buzzing from flower to flower, making up the rules as it

goes along.

Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996). Especially where the

IJ did not have the opportunity to address Touarsi, the Board has

an obligation to do so and thereby "give careful, individualized,

rational explanations for its decisions," Mousa v. INS, 223 F.3d

425, 430 (7th Cir. 2000) and "announce its decision in terms

sufficient to enable a court to determine it heard and thought and
-13-

not merely reacted." See Scorteanu v. INS, 339 F.3d 407, 412 (6th

Cir. 2003) (citations omitted). 

Based on the AWO, we cannot determine whether the Board

reviewed Haoud's case and found a legitimate means of

distinguishing it from Touarsi. As we held in Albathani v. INS,

"If the [Board] identifies an alternative satisfactory ground for

upholding the denial of asylum in a case with an otherwise

unsatisfactory decision by the IJ, it must state it or risk

remand." 318 F.3d at 378. The Board's use of the AWO must not

interfere with Haoud's "right to a reasoned administrative

decision." See Executive Office of Immigration Review; Board of

Immigration Appeals: Streamlining, 64 FR 56135, 56137 (1999). As

Touarsi bears strongly on Haoud's asylum application, an AWO

affirming an IJ's decision that never considered Touarsi fails to

meet this mandate. 

We therefore remand to the Board for further agency

proceedings consistent with this opinion.