Second Circuit Addresses Split Re Jurisdiction to Review Single-Member BIA Decisions

Per Kambolli v. Gonzales, --- F.3d ----, 2006 WL 1453116 (2d Cir. May 26, 2006):

We consider here whether we have jurisdiction to review a decision by a member of the Board of Immigration Appeals (“BIA”) unilaterally to affirm without opinion a decision of an immigration judge (“IJ”) pursuant to the BIA's “streamlining” procedures codified at 8 C.F.R. § 1003.1(e) rather than to refer the case to a three-member panel of the BIA …

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Our sister circuits have split… on the question of whether Courts of Appeals are vested with jurisdiction to review the Board's decision to have a particular case decided by a single member rather than by a three-member BIA panel. Compare Ngure v. Ashcroft, 367 F.3d 975, 983 (8th Cir.2004) (decision to steamline “a particular case is committed to agency discretion and not subject to judicial review”), and Tsegay v. Ashcroft, 386 F.3d 1347, 1353-58 (10th Cir.2004) (concluding that appellate review is precluded because BIA summary affirmances provide no rationale, the regulations were not intended to grant aliens substantive rights, and review would be impractical and would defeat the “streamlining” purpose), with Smriko v. Ashcroft, 387 F.3d 279, 290-95 (3d Cir.2004) (remanding case to BIA for three-member panel review), and Haoud v.. Ashcroft, 350 F.3d 201, 206-08 (1st Cir.2003) (holding that, in a case in which a one-member decision without opinion left unclear whether affirmance was based on an application's untimeliness-a discretionary ground for denial that cannot be reviewed-or on the merits-which may be reviewed-Court of Appeals cannot know if it possesses jurisdiction and therefore must remand to BIA for explanation of ratio decidendi), and Chong Shin Chen v. Ashcroft, 378 F.3d 1081, 1086-88 (9th Cir.2004) (remanding a one-member decision without opinion to the BIA for determination of a “novel legal issue” by a three-member panel of the BIA).

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We . . . conclude that we lack jurisdiction to review decisions by BIA members to affirm IJ decisions without opinion without reference to a three-member BIA panel--substantially for the reasons articulated by our sister circuits reaching the same result.