# United Stat es Court of Appeals For the First C ircuit

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 La houa ri Haoud appeals from the Board of Immigration Appeals' (the "Board") affirmance without opinion of an Immigration Judge's order denying Haoud's claims f or rel ief 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

Haoudis a native and citizen of Algeria. He entered the UnitedStates on a six-month visa in 1995 and stayed unlawfully after the expiration of the visa. On December 30, 1999, the FBI andlocal police came to his home in East Boston, Massachusetts, andarrested 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 hi m to the g ene ral 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 hadoverstayed 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, withhol d ing of-3-

removal under 8 U.S. C. § 1231(b)(3), withholding or deferral of removal under Article 3 of t he 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 associatedwith 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 ar rest and the subsequent media cov erage, 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 untime ly f iled 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 demons trat e either past persecution or a well-foundedfear 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-

asylumclaim" andthat Dr. Entelis's testimony was too speculative to support the claim.

Shortly after the IJ made these determinations, the Board decideda 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 we ll-founded fear of persecution in Algeria based on imputed political opinion."

Haoudtimely appealed the IJ's decision to the Board. In his appeal, Haoud raised Tou arsi . 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 r aise three primary issues: (1) whether we have jurisdic tion t o review the Board's decision; (2) whether the IJ's decision was in error; and (3) whether the Board's affirmance without opinion (AW O) v iolated 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 interpretation1 8 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.

2 8 U.S.C. § 1158(a)(3) provides No Court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).

3 8 U.S.C. § 1158(a)(2)(D) provides An applicati on for asylum of an alien may be considered, n otwit hstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstan ces w hich 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 t he u nderlying 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 con tends that we lack jurisdiction to review the IJ's denial of Haoud's asylumapplication because Haoud failedto file his appl ication 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 applica tion . 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). 34 We are not similarly barredfrom 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 asylumapplication. 4 See Tarrawally v. Ashcroft , 338 F.3d180, 185 (3dCir. 2003); Tsevegmidv. Ashcroft , 318 F.3d 1226, 1230 (10th Cir. 2003); Fahimv. U.S. Attorney General , 278 F.3d 1216, 1217 (11th Cir. 2002); Hakeemv. INS , 273 F.3d 812, 815 (9th Cir. 2001). The Tenth Circuit in Tsevegmidexplained:

This court generally has j urisdiction to review the denial of any asylumreque st. See 8 U.S.C. § 1252(a)(2)(B)(ii). . . . Ho weve r, our jurisdiction to review a [Board] determinat ion on the timeliness of an application for asylum is limi ted 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 e ntr y 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 det ermina tion of the timeliness of Haoud's asylumappl icatio n, 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 aff irmed the IJ's decision. If the Board affirmed the-7-

IJ's decision on the merits of Haoud's persecution claims, but rejectedthe IJ's conclusion as to the untimelin ess an d "changed circumstances" issue, then we have jurisdiction over this appeal. B. The IJ's Decision

Haoudchallenges 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. IN S , 232 F.3d 258, 262 (1st Cir. 2000);

see also Saakian v. INS , 252 F.3d 21, 25-27 (1st Ci r. 2001). Failure to do so can result in the reversal of an agency order and a new hearing. Id.

Haoudargues that the Board failed to follow its own regulatory procedure when it issuedthe affirmance without opinion (AWO) in this case. The Attorney General adopted the AWO procedure at issue in 1999. Rather than the usual three-m ember 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 Boardapproval of only the "result reached in the decision below." 8 C.F.R. § 100 3.1 (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 a ppeal are squarely controlled by existing Board o r federal court precedent and do not inv o lve the application of precedent to a nov el 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 l aw "is drawn so that a court would have no meaningfu l standar d-9-

against which to judge the agency's exerci se o f 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 Cour t foun d the FDA's decision unreviewable because it dealt with "comp licate d balancing of factors" t hat 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 a gainst whi ch a court

c ouldlegitimately review the FDA's decision not to comm enc e enforcement proceedings. See id.

Here, the Board's own regulation provides more t han 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 i ssues rai sed 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 -eq uipped, both statutorily and-10-

practically, to review a decision to streamline. See Goncalves v. Reno , 144 F .3d 110, 1 27 (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 p os tulates that the criteria of 8 C.F.R. § 1003.1(e)(4) were met here and that there was no harmful

error requiring revi ew 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 a lternatives outlinedin the regulation was applied to affirm the IJ's decision, which itself was based on multiple grounds. Put another way, presentl y, w e have no way of knowing whether and how the Board appliedthe standards of 8 C.F.R. § 1003.1(e)(4) to either or both of t he IJ's conclusions on (1) the "changed circumstances" exception to the time bar and (2) the issues of past and future persecution that const i tute the merits of Haoud's asylum application. The AWO in this case gives us no guidance as to whether th e Boar d 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 cas e in denying Haoud's asylum claim. We have stated th at "[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 n ati onal 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 acc oun t of the political opinion that wouldbe imputed to him by that countr y's g overnment, 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. Notwithsta ndin g the fact that Haoud brought Touarsi to its attention, the Board failed to render a decision con sistent-12-

with or fully explained as reasonably depa rti ng 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 andemployees of the Service or Immigration Ju dge s in the admi nistration of the Act." 8 C.F.R. § 1003.1(g). Amo ng th e points raised by Haoud with regard to the precedential value of Touarsi , bes ides 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 UnitedStates, 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 situatedsupplicants. 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. Henryv. 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, " Mous a 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 andthought 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 reviewedHaoud's case and found a legitimate means of distinguishing it from Touarsi . As we held in Alb athan i 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

re mand." 318 F.3d at 378. The Board's use of the AWO m ust no t interfere with Haoud's "right to a reasoned administrative decision." See Executive Office of Immigration Review ; Boar d of Immigration Appeals: Streamlining, 64 FR 56135, 56137 (1999). As Touarsi bears strongly on Haou d's asylum application, an AWO affirming an IJ's decision that never considered Touarsi fails to meet this mandate.

We therefore remandto the Board for further agency proceedings consistent with this opinion.