United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3879

___________

Joseph Ngure, *

*

Petitioner, *

* Petition for Review of an

v. * Order of the Board of 

* Immigration Appeals.

John D. Ashcroft, Attorney General *

of the United States, *

*

Respondent. *

___________

Submitted: December 15, 2003

 Filed: May 17, 2004

 ___________

Before MELLOY, BEAM, and COLLOTON, Circuit Judges.

___________

COLLOTON, Circuit Judge.

Joseph Ngure petitions for review of the decision of the Board of Immigration

Appeals ("BIA") denying his claims for asylum, withholding of removal, and relief

under the Convention Against Torture. We hold that the determination whether the

BIA properly employed its streamlined "affirmance without opinion" procedure with

respect to Ngure's claims is committed to agency discretion by law. Reviewing the

decision of the immigration judge ("IJ"), which was affirmed without opinion by the

BIA, we conclude that this court lacks jurisdiction to review the IJ's determination
-2-

that Ngure's application for asylum was untimely. As to those claims over which we

have jurisdiction, we deny the petition for review.

 I.

On August 30, 1995, Joseph Ngure, a native and citizen of Kenya, entered the

United States as a nonimmigrant student to attend Principia College in Elsah, Illinois.

The terms of his J-1 visa permitted him to stay in the United States until June 15,

1996. On January 25, 2000, the INS issued a Notice to Appear charging that Ngure

was removable for failing to maintain his nonimmigrant status. Ngure admitted that

he was removable, and on May 17, 2000, he applied for asylum, withholding of

removal under 8 U.S.C. § 1231(b)(3), and relief under the Convention Against

Torture. 

Ngure is a member of the Kikuyu tribe, which is the largest tribe in Kenya. 

While Ngure was a student at the University of Nairobi in 1987, he participated in a

week-long pro-democracy demonstration protesting, among other things, the

detention of various political prisoners and the marginalization of tribes such as the

Kikuyu. Due to violence that erupted at the demonstration, the university closed. At

that time, Ngure was arrested while he was in his room. Soon after he arrived at the

police station, he secured his release because he knew the superintendent of police.

Ngure claims that his friend Charles Kirigua was arrested and tortured for his

involvement in the demonstration, but Mr. Kirigua actually told Ngure that he was

injured during a robbery.

Again, in 1990, Ngure participated in a pro-democracy demonstration that

became riotous, and government forces arrested hundreds of participants, including

Ngure. When he was arrested, he was hit with batons and truncheons. He was

detained at a police station for one week, during which time he was interrogated,

"roughed up," and subjected to cold and crowded conditions. The interrogations
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focused on whether he was affiliated with any dissident Kenyan groups. Ngure told

the officials that while he was not a member of the groups, he sympathized with their

causes. The following week Ngure was questioned in more "tranquil" settings at the

Directorate of Intelligence. He was then returned to the police station for another

week, at which time Ngure's brother-in-law bailed him out of jail, and the government

dropped the charges against him.

Ngure is a follower of the Christian Science faith. In 1993, his Christian

Science group met in the park, but police officials advised them that they needed to

have a permit to meet in the park and ordered them to disperse. The police took

names, but none of the meeting attendees were harmed or arrested.

When Ngure was working in Nairobi in 1994, he was arrested as he passed by

a demonstration-turned-riot at a park. He was charged with participating in illegal

demonstrations, and was released the next morning on a recognizance bond. The

bond required Ngure to report to the police station on a monthly basis until the riots

were resolved. 

After Ngure left Kenya for the United States in 1995, the Kenyan police went

to the home of Ngure's family because he failed to report as scheduled pursuant to the

bond. When Ngure was not found, an arrest warrant was issued on February 5, 1996,

commanding the arrest of Ngure and ordering him to be brought before the court to

answer the charge that he "participated in illegal demonstrations at Uhuru Park's

Freedom Corner and defaulting on his own recognizance to appear."

In November 2000, an IJ conducted an evidentiary hearing concerning Ngure's

removal from the United States. The IJ concluded that Ngure was ineligible for

asylum because he did not file his application within one year of arriving in the

United States and did not demonstrate any "changed" or "extraordinary

circumstances" that caused his failure to apply within that time period. See 8 U.S.C.
1

We refer throughout the text to the 2003 Code of Federal Regulations, which

includes the provisions in effect at the time of the BIA's action in this case. Since the

BIA's order in Ngure's case, the streamlining regulations have been recodified at 8

C.F.R. § 1003.1(e)(4); see Aliens and Nationality; Homeland Security;

Reorganization of Regulations, 68 Fed. Reg. 9824, 9830 (Feb. 28, 2003). The

affirmance without opinion procedure also appears at 8 C.F.R. § 1003.1(a)(7).

-4-

§ 1158(a)(2)(B) & (D). Alternatively, the IJ found that although Ngure's testimony

was credible, he did not suffer past persecution or have a well-founded fear of future

persecution on account of his membership in the Kikuyu tribe, political opinions, or

religious beliefs. Based on the same evidence, the IJ denied his requests for

withholding of removal and relief under the Convention Against Torture. The BIA

subsequently affirmed the IJ's decision without opinion, pursuant to 8 C.F.R. §

3.1(e)(4) (2003).1

 Pursuant to agency regulations, the IJ's decision became the final

agency determination. 8 C.F.R. § 3.1(e)(4)(ii).

 

 II.

Prior to 1999, a panel of three BIA members reviewed the decisions of

immigration judges. After concluding that the rapidly growing caseload of the Board

of Immigration Appeals was impeding its ability to provide fair, timely, and uniform

adjudications, Attorney General Reno instituted the BIA's affirmance without opinion

("AWO") procedure in 1999. Executive Office for Immigration Review; Board of

Immigration Appeals: Streamlining, 64 Fed. Reg. 56,135 (Oct. 18, 1999). Attorney

General Ashcroft amended the AWO regulations in 2002 in an effort to strengthen

and enhance the review process. Board of Immigration Appeals: Procedural Reforms

to Improve Case Management, 67 Fed. Reg. 54,878 (Aug. 26, 2002).
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The streamlining regulations provide that a single board member shall "affirm

without opinion" an IJ's decision in certain circumstances. The BIA member is

required to employ the AWO procedure if the member finds that the result reached

by the IJ was correct, that any errors by the IJ were harmless or nonmaterial, and that

either "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 factual situation"

or "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." 8 C.F.R. § 3.1(e)(4)(i). The

decision to affirm without opinion does not necessarily approve the reasoning of the

IJ, but it does signify that the BIA agrees that the result was correct because any

errors were harmless or nonmaterial. 8 C.F.R. § 3.1(e)(4)(ii). Once the BIA affirms

a decision without opinion, the IJ's decision becomes the final agency determination.

Id.; Palomino v. Ashcroft, 354 F.3d 942, 943 (8th Cir. 2004).

Our court, like every court of appeals to consider the question, has held that the

AWO procedure comports with the Due Process Clause of the Fifth Amendment.

Loulou v. Ashcroft, 354 F.3d 706, 708-09 (8th Cir. 2003), amended by, No. 02-3004,

slip op. (8th Cir. April 28, 2004); Belbruno v. Ashcroft, 362 F.3d 272, 282-83 (4th

Cir. 2004); Yuk v. Ashcroft, 355 F.3d 1222, 1229-32 (10th Cir. 2004); Dia v. Ashcroft,

353 F.3d 228, 238-45 (3d Cir. 2003) (en banc); Georgis v. Ashcroft, 328 F.3d 962,

967 (7th Cir. 2003); Mendoza v. U.S. Att'y Gen., 327 F.3d 1283, 1288-89 (11th Cir.

2003); Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003). In Loulou, we explained

that an alien has no constitutional or statutory right to an administrative appeal from

the decision of an IJ. 354 F.3d at 708. Any such right, we observed, is created by

regulations issued by the Attorney General, and the current regulations do not entitle

an alien to a full opinion by the BIA. Id. As a matter of constitutional law, the alien

is entitled only to a reasoned decision from the agency, not from a particular

component of the agency. Yuk, 355 F.3d at 1230; Dia, 353 F.3d at 241; Albathani,

318 F.3d at 377. We concluded in Loulou that streamlined review did not

compromise our ability to review the decision of the Attorney General, because we
2

At oral argument, Ngure's counsel argued that an affirmance without opinion

in his case violated the Due Process Clause. Counsel acknowledged, however, that

the argument was not "well developed" in Ngure's brief and that it was present only

in "nascent" form. In fact, Ngure's brief contained only two references to the words

"due process," and they appeared in the midst of sections of Ngure's brief that clearly

argued different points. These references are not sufficient to support the

constitutional challenge presented at oral argument, see Navarijo-Barrios v. Ashcroft,

322 F.3d 561, 564 n.1 (8th Cir. 2003), and we will not consider a claim raised for the

first time at oral argument. United States v. Mitchell, 31 F.3d 628, 633 n.3 (8th Cir.

1994). Accordingly, we conclude that Ngure waived any constitutional challenge to

the use of AWO in his case.

3

We have not previously decided this question. Two of our cases, in summary

fashion, have stated that the use of the AWO process in a particular case was proper.

Al Tawm v. Ashcroft, 363 F.3d 740, 744 (8th Cir. 2004); Martinez Ortiz v. Ashcroft,

361 F.3d 480, 481-82 (8th Cir. 2004). Whether the streamlining decision was subject

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can review directly the decision of the IJ. 354 F.3d at 708. Accordingly, we rejected

the constitutional challenge to the AWO procedure. Id. at 708-09.

Ngure raises a nonconstitutional challenge to the use of the streamlining

procedure in his case.2

 He argues that the BIA's decision to affirm without opinion

does not comply with the governing regulations, and that this court should remand

the case to the BIA for issuance of a written opinion by a three-member panel. The

government implicitly concedes that as a general matter, the Justice Department's

failure to follow its own regulations can be challenged under the Administrative

Procedure Act ("APA"). See Webster v. Doe, 486 U.S. 592, 602 n.7 (1988); Vitarelli

v. Seaton, 359 U.S. 535, 539-40 (1959); Service v. Dulles, 354 U.S. 363, 372 (1957).

The government contends, however, that the decision to employ the AWO procedure

in a given case is "committed to agency discretion by law," within the meaning of the

APA, 5 U.S.C. § 701(a)(2), and that we have no jurisdiction to review it. Our

jurisdiction, under that view, is limited to reviewing the decision of the IJ, which

constitutes the final determination by the agency.3
to judicial review was not discussed in either case, however, and those decisions

cannot be read as having decided the jurisdictional issue. Jones v. U.S. Bureau of

Prisons, 903 F.2d 1178, 1182 (8th Cir. 1990).

-7-

There is a "basic presumption of judicial review" of agency action. Lincoln v.

Vigil, 508 U.S. 182, 190 (1993) (internal quotations omitted). "This is 'just' a

presumption, however," and in certain instances, agency action is deemed committed

to agency discretion by law, and thus unreviewable by the courts. Id. at 190-91. Over

the years, the Supreme Court has held that judicial review is precluded for certain

administrative decisions that are "traditionally left to agency discretion," id. at 191,

under what has been described as "the 'common law' of judicial review of agency

action." Heckler v. Chaney, 470 U.S. 821, 832 (1985). These discretionary actions

include such matters as whether to institute an enforcement action, id. at 837-38, how

to allocate funds from a lump-sum appropriation, Lincoln, 508 U.S. at 192-93, and

whether to grant reconsideration of an action because of material error. ICC v. Bhd.

of Locomotive Engineers, 482 U.S. 270, 282 (1987). 

The Supreme Court typically has held that actions are committed to agency

discretion where it is not possible to devise an adequate standard of review for an

agency action, id., such as where the relevant statute "is drawn so that a court would

have no meaningful standard against which to judge the agency's exercise of

discretion." Chaney, 470 U.S. at 830; see also United States v. Juvenile Male J.A.J.,

134 F.3d 905, 907 (8th Cir. 1998); North Dakota ex rel. Bd. of Univ. and Sch. Lands

v. Yeutter, 914 F.2d 1031, 1034-35 (8th Cir. 1990). Courts often ask whether there

is sufficient "law to apply" in reviewing the agency's action. Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 413 (1971). An important factor in

discerning whether there is a "meaningful standard" for judicial review is whether the

agency decision "involves a complicated balancing of a number of factors which are

peculiarly within its expertise." Chaney, 470 U.S. at 831. In that situation, "[t]he

agency is far better equipped than the courts to deal with the many variables involved
-8-

in the proper ordering of its priorities." Id. at 831-32; see also Lincoln, 508 U.S. at

193.

There is no statute that requires the BIA to issue a written opinion in any

particular case, and Ngure does not contend that a statute provides the requisite "law

to apply." As noted, however, the judiciary may in certain contexts review an

agency's compliance with its own regulations when the regulations impose binding

norms on the agency. Vitarelli, 359 U.S. at 539-40; Dulles, 354 U.S. at 372. "As a

general rule, an agency pronouncement is transformed into a binding norm if so

intended by the agency[,] and agency intent, in turn, is ascertained by an examination

of the statement's language, the context, and any available extrinsic evidence."

Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987) (internal quotations and

citations omitted). We consider the "language and context" of agency regulations to

determine whether they were "intended to bind" the agency's discretion. South

Dakota v. Ubbelohde, 330 F.3d 1014, 1028 (8th Cir. 2003). The Supreme Court has

conducted judicial review, for example, where agency rules were "intended primarily

to confer important procedural benefits upon individuals in the face of otherwise

unfettered discretion," Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532,

538-39 (1970) (citing Vitarelli, 359 U.S. 535), or where a rule required the agency to

exercise independent discretion, but it failed to do so. United States ex rel. Accardi

v. Shaughnessy, 347 U.S. 260, 268 (1954). On the other hand, where a procedural

rule is designed primarily to benefit the agency in carrying out its functions, judicial

review may be circumscribed. Am. Farm Lines, 397 U.S. at 539.

Several considerations lead us to conclude that the BIA's decision whether to

employ the AWO procedure in a particular case is committed to agency discretion and

not subject to judicial review. First, an administrative agency's decision about how

to allocate its scarce resources to accomplish its complex mission traditionally has

been free from judicial supervision. This tradition of deference is rooted in the

separation of powers, and the respect of the judiciary for the functions of a coordinate
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branch of government. It is "absolutely clear" that absent constitutional constraints

or extremely compelling circumstances, "administrative agencies should be free to

fashion their own rules of procedure and to pursue methods of inquiry capable of

permitting them to discharge their multitudinous duties." Vermont Yankee Nuclear

Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543 (1978) (internal

quotations and citations omitted). Well before enactment of the APA, the Supreme

Court recognized that "'administrative agencies and administrators will be familiar

with the industries which they regulate and will be in a better position than federal

courts or Congress itself to design procedural rules adapted to the peculiarities of the

industry and the tasks of the agency involved.'" Id. at 525 (quoting FCC v. Schreiber,

381 U.S. 279, 290 (1965)); see also FCC v. Pottsville Broadcasting Co., 309 U.S.

134, 138 (1940). 

The Attorney General's explanation for the AWO procedure demonstrates the

applicability of these principles to the immigration review process:

To operate effectively in an environment where over 28,000 appeals and

motions are filed yearly, the Board must have discretion over the

methods by which it handles its cases. The process of screening,

assigning, tracking, drafting, revising, and circulating cases is extremely

time consuming. Even in routine cases in which all Panel Members

agree that the result reached below was correct, disagreements

concerning the rationale or style of a draft decision can require

significant time to resolve. The Department has determined that the

Board's resources are better spent on cases where there is a reasonable

possibility of reversible error in the result reached below.

Streamlining, 64 Fed. Reg. at 56,137. We believe that the tradition of agency

discretion over internal procedures is particularly strong in this case, because "judicial

deference to the Executive Branch is especially appropriate in the immigration

context where officials 'exercise especially sensitive political functions that implicate
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questions of foreign relations.'" INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)

(quoting INS v. Abudu, 485 U.S. 94, 110 (1988)). 

Second, our review of the text, structure, and history of the streamlining

regulations leads us to conclude that the Attorney General surely did not intend to

create substantive rights for aliens in the determination whether a particular decision

of an IJ was affirmed without opinion. As the Department of Justice explained when

adopting the initial streamlining regulations: 

The number of appeals filed with the Board in recent years has exceeded

the Board's capacity to give meaningful, three-Member consideration to

each appeal, and to issue written decisions in every case. The summary

affirmance process is a reasonable response to the current situation,

because it allows the Board to concentrate its resources on cases where

there is a reasonable possibility of reversal, or where a significant issue

is raised in the appeal, while still providing assurances that correct

results are achieved in all cases under the Board's appellate jurisdiction.

Streamlining, 64 Fed. Reg. at 56,138. The Justice Department again stressed the

importance of streamlining as a management tool when amending the regulations in

2002: "The Department has concluded that streamlining has proven to be an effective

procedure for managing an ever-increasing caseload and will significantly assist and

promote fair and expeditious review of all pending and incoming appeals while

maintaining a respondent's rights to a reasoned administrative decision." Procedural

Reforms to Improve Case Management, 67 Fed. Reg. at 54,885. Consistent with this

theme, the AWO regulation appears in a section entitled "Case management system."

8 C.F.R. § 3.1(e).

To say the least, judicial review of the BIA's streamlining decision would have

"disruptive practical consequences" for the Attorney General's administration of the

alien removal process. Cf. Southern Ry. Co. v. Seaboard Allied Milling Corp., 442

U.S. 444, 457 (1979). It is, of course, a basic principle of administrative law that
4

Rule 47B provides, in pertinent part:

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where agency action is subject to judicial review, the agency must provide an

adequate reasoned explanation of its decision. SEC v. Chenery Corp., 318 U.S. 80,

94-95 (1943); SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947). The Attorney

General's streamlining regulations, however, explicitly prohibit the BIA from

providing any explanation for its decision to affirm without opinion. 8 C.F.R.

§ 3.1(e)(4)(ii). The reason seems evident: If the BIA were required to explain in each

case why the result reached by the IJ was correct, why any errors were harmless or

nonmaterial, why the issues on appeal are squarely controlled by precedent and do not

involve application of precedent to a novel factual situation, and why the issues are

not so substantial that the case warrants issuance of a written opinion, see id.

§ 3.1(e)(4)(i), then the BIA would be required to write the functional equivalent of

a written opinion on the merits in every adjudication. Indeed, if we were to hold that

the streamlining decision is subject to judicial review, then we would expect aliens

regularly to challenge the BIA's affirmance without opinion on the ground that it

failed to provide an adequate explanation for its judicially reviewable decision to

affirm without opinion.

It is readily apparent, however, that by setting criteria for which cases should

be decided through affirmance without opinion, the Attorney General did not

"intend[ ] primarily to confer important procedural benefits upon individuals in the

face of otherwise unfettered discretion." Am. Farm Lines, 397 U.S. at 538. We

believe the Attorney General intended primarily to provide BIA members with a

mechanism to use their scarce resources efficiently as they carried out the Attorney

General's responsibility to enforce the immigration laws. In this regard, we think the

Justice Department's regulation is not unlike this court's Rule 47B, which provides

that a judgment may be affirmed without opinion in certain enumerated

circumstances. See 8th Cir. Rule 47B.4

 It has never been thought that the Supreme
A judgment or order appealed may be affirmed or enforced without

opinion if the court determines an opinion would have no precedential

value and any of the following circumstances disposes of the matter

submitted to the court for decision:

(1) a judgment of the district court is based on findings of fact

that are not clearly erroneous;

(2) the evidence in support of a jury verdict is not insufficient;

(3) the order of an administrative agency is supported by

substantial evidence on the record as a whole; or

(4) no error of law appears.

5

Under the regulation, a showing that the issues on appeal are not "squarely

controlled by existing Board or federal court precedent" or that they involve "the

application of precedent to a novel factual situation," 8 C.F.R. § 3.1(e)(4)(i)(A), is not

sufficient to preclude affirmance without opinion, because such a case should still be

affirmed without opinion if the issues are "not so substantial that the case warrants

the issuance of a written opinion in the case." Id. § 3.1(e)(4)(i)(B). Thus, dictum in

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Court would review the propriety of this court's decision to affirm a district court

without opinion under Rule 47B, as opposed to the merits of the underlying decision,

and we see no reason to believe that the Department of Justice intended its

comparable rule to have a different effect.

Third, the specific determinations that Ngure would have us review are not

amenable to judicial consideration. For a court to rule that Ngure's case did not

satisfy the criteria for affirmance without opinion, it would have to conclude either

(1) that the result reached by the IJ was incorrect (including that any errors made by

the IJ were not harmless), or (2) that the BIA was wrong to find that "factual or legal

issues raised on appeal are not so substantial that the case warrants the issuance of a

written opinion in the case." 8 C.F.R. § 3.1(e)(4)(i).5

 We conclude that it is not
Georgis, 328 F.3d at 967 n.4, that it "seems preferable" for a court to require a written

opinion when it believes that a case is not "controlled by existing Board or federal

court precedent" does not resolve the issue of reviewability.

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possible to devise a meaningful and adequate standard of review with respect to either

point.

Review of the first issue -- whether the result reached by the IJ was correct --

presents a situation similar to that which the Supreme Court confronted in ICC v.

Locomotive Engineers. There, the Court considered the authority of the Interstate

Commerce Commission to reopen a proceeding and reconsider its prior actions

because of "material error." In holding that the ICC's refusal to reopen a proceeding

was committed to agency discretion by law, the Court observed that an appeal of such

a refusal "places before the courts precisely the same substance that could have been

brought there by appeal from the original order -- but asks them to review it on the

strange, one-step-removed basis of whether the agency decision is not only unlawful,

but so unlawful that the refusal to reconsider it is an abuse of discretion." Locomotive

Engineers, 482 U.S. at 279. The Court concluded that an appeal of a refusal to

reopen proceedings "serves no purpose whatever," because the aggrieved party could

simply appeal the original order directly to the courts. Id. Noting that federal courts

often deny rehearing petitions without subjecting that denial (as opposed to the

underlying decision) to further appellate review, the Supreme Court held that the

APA codified a tradition of nonreviewability that exists with regard to refusals to

reconsider for material error, by agencies as well as by lower courts. Id. at 280.

The BIA's decision to affirm without opinion is comparable to the ICC's

decision to deny a motion to reopen in important respects. When the BIA summarily

affirms, the decision of the IJ becomes the final agency determination. An alien may

petition the court of appeals for review of the agency decision. Ngure, however,

would have this court review both whether the result of the IJ's decision was correct,
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and whether the BIA was correct to conclude that the result of the IJ's decision was

correct. Review of the BIA's determination would duplicate the review of the merits

already undertaken, but "on the strange, one-step removed basis" of whether the IJ's

decision not only is wrong, but so wrong that affirming it without opinion was an

abuse of discretion. Id. at 279. As in Locomotive Engineers, an appeal to determine

whether the BIA was correct to find that the IJ's decision was correct serves "no

purpose whatever" when the court can directly review the IJ's decision. Id.; see also

Georgis, 328 F.3d at 967 & n.4 (observing that "it makes no practical difference

whether the BIA properly or improperly streamlined review of Georgis's case"

because the court of appeals reviews directly the decision of the IJ). And where a

statute precludes judicial review of the IJ's determination, the court of appeals also

lacks jurisdiction to review the BIA's decision to affirm without opinion, because

such review would require the court to examine the merits of the IJ's unreviewable

determination. Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 (9th Cir. 2003).

With respect to the second issue -- whether the issues presented to the BIA

were "so substantial that the case warrants the issuance of a written opinion" -- we

conclude that there is no manageable standard for judicial review. The question here

is not whether the issues are "substantial" in the abstract, or whether the case presents

a "substantial question of law or fact," as in the familiar determination for release of

a criminal defendant pending appeal. See, e.g., 18 U.S.C. § 3143(b)(1)(B); United

States v. Powell, 761 F.2d 1227, 1231-32 (8th Cir. 1985). The term "substantial" is

modified in the regulation by the requirement that the issues be "so substantial" that

they warrant the issuance of a written opinion. 8 C.F.R. § 3.1(e)(4)(i)(B) (emphasis

added). 

Whether a particular case "warrants the issuance of a written opinion" is

necessarily a function of the BIA's limited resources at a particular point in time, and

the views of members of the BIA as to whether those limited resources should be

dedicated to writing an opinion in a given case. That decision about allocation of
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resources turns on a determination by the BIA members, given their expertise in the

field and their experience in reviewing thousands of administrative appeals, whether

the administration of the immigration laws would be enhanced by publishing an

opinion. See 8 C.F.R. § 3.1(e)(6). We respectfully disagree, therefore, with dictum

from our sister circuit in Denko v. INS, 351 F.3d 717, 732 (6th Cir. 2003), that "the

size of the BIA's caseload -- a factor which the Board may be better equipped to

assess -- has no relevance in deciding which cases are appropriate for summary

affirmance." As the Department of Justice explained in 1999:

The summary affirmance system represents a careful balancing of the

need to ensure correct results in individual cases with the efficiencies

necessary to maintain a viable appellate organization that handles an

extraordinarily large caseload. The streamlining system will allow the

Board to manage its caseload in a more timely manner while permitting

it to continue providing nationwide guidance through published

precedents in complex cases involving significant legal issues. 

Streamlining, 64 Fed. Reg. at 56,138. Like other decisions committed to agency

discretion by law, the BIA's streamlining determination "involves a complicated

balancing of a number of factors which are peculiarly within its expertise," Chaney,

470 U.S. at 831, including the size of the BIA's caseload and the limited resources

available to the BIA. 

As even Ngure concedes, moreover, "[t]he regulation provides no guidance

about what would make a factual or legal issue 'not so substantial' that a written

decision is not warranted." (Brief of Petitioner at 13). The regulations do specify that

one of several enumerated circumstances must be present before the BIA is permitted

to employ a three-member panel, 8 C.F.R. § 3.1(e)(6), but they do not require that the

BIA must issue a written opinion in any particular circumstance. We thus part

company with the Tenth Circuit, which found it significant that the circumstances in

which three-member panel review is permissible "have nothing to do with the BIA's
6

Whether the court of appeals has jurisdiction to review the BIA's decision to

streamline a particular case has been discussed in only a few published judicial

opinions. The Tenth Circuit has held that the decision to streamline a particular case

is reviewable, Batalova v. Ashcroft, 355 F.3d 1246, 1252-53 (10th Cir. 2004), while

the Fifth Circuit has held it unreviewable. Garcia-Melendez v. Ashcroft, 351 F.3d

657, 662-63 (5th Cir. 2003). The Ninth Circuit has held that it lacks jurisdiction to

review a streamlining decision in a case involving the hardship requirement of

cancellation of removal, but stated in dicta that not all streamlining decisions are

committed to agency discretion. Falcon Carriche, 350 F.3d at 853-54. Other courts

have stated that streamlining was appropriate in a particular case without addressing

the threshold question whether the matter is committed to agency discretion by law,

Gonzalez-Oropeza v. U.S. Att'y Gen., 321 F.3d 1331, 1333 (11th Cir. 2003), or by

"assuming" that the court has jurisdiction. Denko, 351 F.3d at 732.

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caseload or other internal circumstances." Batalova v. Ashcroft, 355 F.3d 1246, 1253

(10th Cir. 2004). If the courts fashion a lower threshold or different criteria than the

BIA for determining what is "substantial" enough to require a written opinion, then

the judiciary may well compel the BIA to issue more opinions than it is equipped to

produce, thus undermining the resource allocation goals that led to the streamlining

process in the first place. This presumably is why the Department of Justice made

clear in 2002 that it did not intend to cause "judicial enforcement" of three-member

panel review, and accordingly crafted regulatory language to ensure that a single BIA

member has "discretion" to refer cases to a panel in accordance with 8 C.F.R.

§ 3.1(e)(6). See Procedural Reforms to Improve Case Management, 67 Fed. Reg. at

54,888. We believe the regulation is designed not to provide aliens with an

enforceable right to written opinions, but rather to give the BIA flexibility to decide

whether a particular issue, at a particular time, warrants the dedication of scarce

resources. 

Ngure relies on Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003), for the

proposition that this case should be remanded to the BIA for a written opinion.6

 Like

Ngure's case, Haoud involved a decision of an IJ that denied an alien's claim for
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asylum on alternative grounds, one of which was subject to judicial review

(insufficient evidence of persecution), and one of which was declared unreviewable

by statute (untimely asylum application). Id. at 206. The First Circuit held that the

BIA's decision to streamline was subject to judicial review, because the "Board's own

regulation provides more than enough 'law' by which a court could review the Board's

decision to streamline," and because "[e]specially when the Board's review of an IJ's

decision often hinges on Circuit court precedent, we are well-equipped, both

statutorily and practically, to review a decision to streamline." Id. The court

observed that after the IJ rejected the alien's persecution claim, the BIA had filed a

new decision that appeared to support the alien's claim. Id. at 203-04. The court

expressed concern that it could not determine from the AWO whether the BIA had

affirmed the IJ's decision based on the absence of persecution (which the court

thought dubious in light of the new precedent) or on untimeliness (which was

judicially unreviewable). Id. at 206-07. Accordingly, the court remanded the case

for further agency proceedings during which the BIA could spell out its reasoning.

Id. at 207-08.

In some respects, we respectfully disagree with the First Circuit. For the

reasons previously discussed, we do not agree that the determination to streamline a

particular case is generally amenable to judicial review. We also believe that the

proper focus for the reviewing court is on the decision of the agency (which, by

regulation, is the decision of the IJ in this case), not on whether the reviewing court

can discern the reasoning of an agency component such as the BIA (or the Attorney

General, for that matter, when he declines to review a decision of the BIA, see 8

C.F.R. § 3.1(h)). Principles of administrative law require that the agency provide a

reasoned explanation for its decision, seeChenery, 318 U.S. at 94-95, and the opinion

of an IJ satisfies this requirement regardless whether the grounds relied upon by the

IJ are subject to judicial review. That an alien might be unable to challenge the

explanation of the IJ under the statute enacted by Congress does not mean that the

agency failed to provide a reasoned explanation for its decision.
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Our decision in this case need not conflict with Haoud, however, because the

First Circuit's decision can be read more narrowly. Haoud may be understood as

permitting judicial review of the decision to streamline only in a narrow species of

cases, namely, those in which there is both a reviewable and a non-reviewable basis

for the IJ's decision and a new development in the law that may have undermined the

reasoning of the IJ on the reviewable issue. Haoud involved an intervening decision

of the BIA, and the First Circuit was concerned that "there is no way we can

determine from the AWO whether the Board reviewed the case and found a legitimate

way of distinguishing the [BIA's intervening decision] in denying Haoud's asylum

claim." Haoud, 350 F.3d at 207. In our own cases involving the Social Security

Administration's Appeals Council, we have held that while the decision to deny

review generally is unreviewable, Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994);

Browning v. Sullivan, 958 F.2d 817, 822-23 (8th Cir. 1992), the court of appeals may

remand a case if the Appeals Council denies review without considering new and

material evidence. Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). There may

be reasons to conclude that not even that level of judicial review of the BIA's

streamlining decision is available, given differences in the regulatory schemes, but

we need not resolve that issue here, because Ngure (unlike Haoud) points to no

intervening legal developments that might have affected the decision in his case.

Accordingly, we hold that the BIA's decision to affirm without opinion in

Ngure's case is not subject to judicial review. The decision of the IJ constitutes the

decision of the agency, and we turn next to a consideration of that decision.

III.

A.

The IJ rejected Ngure's asylum claim on alternative grounds. The IJ concluded

that Ngure had failed to apply for asylum within one-year of his arrival in the United
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States as required by statute, 8 U.S.C. § 1158(a)(2)(B), and that he did not

demonstrate "changed circumstances which materially affect the applicant's eligibility

for asylum or extraordinary circumstances relating to the delay in filing an

application." Id. § 1158(a)(2)(D). The IJ decided, alternatively, that Ngure had not

demonstrated the requisite well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion if

he were returned to his native Kenya. See id. § 1101(a)(42)(A).

 On appeal, Ngure argues that there were "exceptional circumstances" that

prevented him from filing a timely application for asylum. Congress, however, has

precluded judicial review of the Attorney General's determination that an alien did not

demonstrate changed or extraordinary circumstances relating to the delay in filing an

asylum application. Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir. 2001); 8 U.S.C.

§ 1158(a)(3). Accordingly, we lack jurisdiction to consider Ngure's challenge to the

IJ's timeliness determination, and his petition for review of the Attorney General's

denial of asylum must be rejected.

B.

Ngure also claims that he is entitled to withholding of removal under 8 U.S.C.

§ 1231(b)(3), which is not subject to a one-year filing deadline. To obtain that relief,

an alien must show that there is a clear probability that he would suffer future

persecution, in the country to which the alien will be removed, because of the alien's

race, religion, nationality, membership in a particular social group, or political

opinion. Francois v. INS, 283 F.3d 926, 932-33 (8th Cir. 2002); 8 U.S.C.

§ 1231(b)(3). In other words, an alien must establish that it is more likely than not

that he will suffer persecution. INS v. Stevic, 467 U.S. 407, 429-30 (1984).

The IJ first analyzed whether Ngure established a well-founded fear of

persecution to support his application for asylum, and concluded that he had not made
-20-

the requisite showing. The IJ then concluded that because withholding of removal

requires a greater showing of likely persecution than does asylum, Ngure's claim for

withholding of removal necessarily failed as well. We follow the same analysis by

first reviewing the IJ's determination that Ngure did not have a well-founded fear of

persecution, and then considering his request for withholding of removal.

To demonstrate a well-founded fear of persecution, an alien must demonstrate

that he genuinely fears persecution, and produce "credible, direct, and specific

evidence that a reasonable person in the alien's position would fear persecution if

returned to the alien's native country." Francois, 283 F.3d at 930. An IJ's decision

on this point will be upheld so long as it is supported by substantial evidence on the

record as a whole. Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004).

Our review takes into account evidence that both supports and opposes the conclusion

of the agency, but the evidence "need not rise to the level of a preponderance" to

sustain the decision. Id. at 919. To reverse the decision of the agency, we must find

that the evidence "was so compelling that no reasonable factfinder could fail to find

the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 483-84

(1992).

Ngure asserts that he suffered past persecution when he was arrested in Kenya

in 1987, 1990, and 1994. In the absence of a statutory definition, our court has

defined persecution as "the infliction or threat of death, torture, or injury to one's

person or freedom, on account of race, religion, nationality, membership in a

particular social group, or political opinion." Regalado-Garcia v. INS, 305 F.3d 784,

787 (8th Cir. 2002). That general definition must be refined further in the context of

a particular alien's situation.

We conclude that the IJ was not compelled to find that Ngure's three prior

arrests established persecution. The arrests in 1987, 1990, and 1994 came after

demonstrations that became riotous, and officials arrested hundreds of participants,
-21-

including Ngure. His arrests in 1987 and 1994 resulted in detentions of less than

twenty-four hours and involved no physical abuse. We have held that "[b]rief periods

of detention do not necessarily constitute persecution." Al Tawm v. Ashcroft, 363

F.3d 740, 743 (8th Cir. 2004) (no past persecution where petitioner was detained on

two occasions for only a few hours each); see also Eusebio v. Ashcroft, 361 F.3d

1088, 1091 (8th Cir. 2004) (brief detentions lasting two or three days do not

constitute persecution); Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) ("Generally,

brief confinements for political opposition to a totalitarian regime do not necessarily

constitute persecution."). 

Ngure's 1990 arrest was more serious, but not sufficient to compel a finding of

persecution. When swept up by the police after a demonstration turned riotous,

Ngure was hit with batons and truncheons. These assaults resulted in bruising, but

did not require medical attention. This court has held that minor beatings or brief

detentions suffered in the wake of political demonstrations do not compel a finding

of past persecution. Eusebio, 361 F.3d at 1090-91. We recently reiterated that "[t]he

mere presence of some physical harm does not require a finding of past persecution."

Al Tawm, 363 F.3d at 743.

It is also important to consider whether an act of violence is an isolated

occurrence, or part of a continuing effort to persecute on the basis of a factor

enumerated in the statute. Generally speaking, evidence of isolated violence does not

compel a finding of persecution. Fisher v. INS, 291 F.3d 491, 497-98 (8th Cir. 2002).

Although Ngure was detained for three weeks in 1990, he was released when his

brother-in-law posted bond. Ngure was not charged with any crime, and there is no

evidence that the Kenyan government had any "continuing interest" in him after his

release. See Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995). Ngure admits that his

later arrest in 1994 was the result of being "in the wrong place at the wrong time,"

and he testified that when he left for the United States in 1995, he planned to return

to Kenya. We conclude, therefore, that the evidence relating to Ngure's prior arrests
-22-

is not so substantial that a reasonable fact finder is compelled to find past persecution.

E.g., Nelson v. INS, 232 F.3d 258, 264 (1st Cir. 2000) (reasonable fact finder was not

compelled to find past persecution when petitioner went through "three episodes of

solitary confinement of less than 72 hours, each accompanied by physical abuse");

Prasad, 47 F.3d at 340 (upholding conclusion of no persecution where petitioner was

hit and kicked while briefly detained in police station, but did not require medical

attention, was not charged with any crime, and was not subject of any "continuing

interest" by government); Kapcia v. INS, 944 F.2d 702, 704, 708 (10th Cir. 1991)

(upholding conclusion of no past persecution where petitioner had been arrested "four

times, detained three times, and beaten once" and co-petitioner twice had been

"detained for a two-day period during which time he was interrogated and beaten").

Ngure testified that he feared future persecution because the government issued

a warrant for his arrest in 1996, after Ngure failed to report to police in accordance

with a bond requirement that was established after his 1994 arrest. On this point, the

IJ found that there was no well-founded fear of persecution because the warrant was

"stale," and the government was within its rights to issue a warrant for Ngure when

he defaulted on his recognizance bond. We are not persuaded that the IJ was

compelled to find that these circumstances established an objectively reasonable fear

of persecution on account of political opinion.

Criminal prosecution for violation of a fairly administered law does not

constitute persecution. El Balguiti v. INS, 5 F.3d 1135, 1136-37 (8th Cir. 1993);

Behzadpour v. United States, 946 F.2d 1351, 1353 (8th Cir. 1991). Ngure has not

produced evidence that the criminal charges against him were improperly motivated

or that he would receive an unfair trial. Ngure does argue that the 1996 warrant was

issued because the Kenyan government was aware of his activities during the 1987

and 1990 demonstrations. The evidence, however, does not compel the conclusion

that the Kenyan government's issuance of an arrest warrant for violating a bond and

reporting requirement imposed in the wake of a riotous demonstration was really an
-23-

effort to persecute Ngure because of his political opinion. Ngure did not prove,

moreover, that other persons who violated recognizance bonds were free from arrest

warrants or criminal charges.

 Ngure next attempts to establish that his fear of persecution is objectively

reasonable by comparing himself to abused individuals identified in United States and

United Kingdom country condition reports. United States Dep't of State, 1999

Country Reports on Human Rights and Practices, Kenya (Feb. 25, 2000); United

Kingdom Home Office, Asylum in the UK, Kenya Assessment (April 2000).

Generally, an asylum-seeker must show an objectively reasonable fear of

"particularized persecution." Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997).

Without evidence of particularized persecution, an applicant nonetheless may obtain

asylum if he can show: 

(A) The applicant establishes that there is a pattern or practice in his or

her country of nationality or, if stateless, in his or her country of last

habitual residence, of persecution of a group of persons similarly

situated to the applicant on account of race, religion, nationality,

membership in a particular social group, or political opinion; and 

(B) The applicant establishes his or her own inclusion in and

identification with, such group of persons such that his or her fear of

persecution upon return is reasonable. 

8 C.F.R. § 208.13(b)(2)(iii). A pattern or practice of persecution must be systemic,

pervasive, or organized. Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995).

We conclude that a reasonable fact finder could find that Ngure did not possess

a well-founded fear of persecution based on the country reports. First, his Kikuyu

ethnicity alone does not establish a present fear of persecution. While Ngure claims

that individuals identified in the country condition reports are Kikuyu, the evidence
-24-

does not compel the conclusion that they were abused on account of their ethnicity.

Ngure did testify that two of his cousins from the Rift Valley were forced to leave

their homes in 1992 due to ethnic violence. But this incident occurred over ten years

ago, and Ngure has not offered proof that he must live near the Rift Valley or any

other area that regularly experiences ethnic turmoil.

Second, Ngure's pro-democracy political opinion also does not provide the

necessary basis for a well-founded fear of particularized persecution. The country

condition reports do not show that individuals like Ngure -- who was arrested over

ten years ago in pro-democracy demonstrations-turned-riots -- are being subjected to

death, imprisonment, or severe injury. Nor is there evidence that Ngure maintained

any connections with Kenyan dissident groups after his time at the university or while

in the United States. See Regalado-Garcia, 305 F.3d at 788. Ngure has not shown

he is similarly situated to any of the individuals identified in the country condition

reports as victims of abuse on account of their political positions. See Feleke, 118

F.3d at 598-99.

Finally, Ngure's claim that the IJ was compelled to find a well-founded fear on

account of his Christian Science beliefs is without merit. Ngure's only allegation of

religious persecution is an occasion when the police forced his Christian Science

group to disperse from a park because they did not have a permit. This confrontation

did not result in violence, an arrest, or a fine. The country condition reports provide

no information regarding the abuse of followers of Christian Science. Instead, the

UK Home Office Report recounts that the Kenyan Constitution "provides for freedom

of religion and the Government generally respects this right in practice," although on

occasion it has interfered with the non-worship activities of religious groups. United

Kingdom Home Office, Asylum in the UK, Kenya Assessment, §§ 5.56-5.58. See

Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir. 2001) (no well-founded fear of

persecution where government guaranteed freedom of religion and ability to

proselytize).
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In sum, we conclude that a reasonable factfinder could find that Ngure had not

established a well-founded fear of persecution upon return to Kenya. Given our

conclusion that the evidence did not compel the IJ to find a well-founded fear of

persecution, we conclude that the IJ also did not err in declining to grant withholding

of removal under the higher standard of proof applicable to that form of relief. See

Francois, 283 F.3d at 932-33.

C.

Ngure's final request is for relief under the Convention Against Torture. To

qualify for such relief, an alien must demonstrate that "it is more likely than not that

he or she would be tortured if returned to the proposed country of removal."

Perinpanathan v. INS, 310 F.3d 594, 599 (8th Cir. 2002); 8 C.F.R. § 208.16(c)(2)

(2000). In assessing this claim, all evidence relevant to the possibility of future

torture should be considered, including, but not limited to: past torture inflicted upon

the applicant; the applicant's ability to relocate to another area of the country where

torture is unlikely; and gross, flagrant, or mass violations of human rights. 8 C.F.R.

§ 208.16(c)(3). We review the agency's denial of relief to determine whether the

evidence was so compelling that a reasonable factfinder must have found the alien

entitled to relief under the Convention. Habtemicael v. Ashcroft, 360 F.3d 820, 824

(8th Cir. 2004).

Ngure argues that the country condition reports provide substantial evidence

of gross, flagrant, or mass violations of human rights in Kenya. The State

Department report regarding Kenya does conclude that the "[g]overnment's human

rights record was generally poor," and "[s]ecurity forces continued to use lethal force

and committed a number of extrajudicial killings." 1999 Country Reports on Human

Rights and Practices, Kenya at 1-2. These reports alone, however, are insufficient

to demonstrate that it is more likely than not that a particular individual will be

tortured by the government if returned to Kenya. Tarrawally v Ashcroft, 338 F.3d
-26-

180, 188 (3d Cir. 2003). Ngure's reliance on the State Department's report of the

torture of a student leader also is not sufficient to compel reversal of the agency,

because Ngure has not provided evidence that he is similarly situated to this

individual.

* * *

For the foregoing reasons, the petition for review is denied.

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