10-2063 Ward v. Holder

Listen to this article

Immigration
Cancellation of removal; judicial review

The court has jurisdiction to review a single-BIA-member review that went beyond merely affirming, modifying or remanding the IJ.

“The heart of petitioners’ argument is that the decision issued by a single BIA member in the case was not a ‘brief’ order, as the language of subsection (e)(5) describes. Because the decision was perhaps lengthier than the average single-member decision, they argue the decision could only have appropriately been rendered by a three-member panel. This dogged focus on what is or is not ‘brief’ provides no substantive evidence of abuse of discretion under the guidelines. To require referral to a three-member panel in each case that lends itself to more than a cookie-cutter order would be contrary to the plain language of § 1003.1(e). It would also ‘greatly weaken the designed effect [of the regulations] by encouraging BIA members to ignore the subsection (e)(5) procedure altogether and send anything requiring elaboration to a three-member panel.’ Id. at 692. We find that the language of 8 C.F.R. § 1003.1 is sufficiently clear in allowing a single member of the BIA to issue an order such as the one rendered in petitioners’ case. Ergo, we cannot find that the BIA violated the review procedures set forth in § 1003.1(e) when a single member rendered a decision on petitioners’ appeal in his discretion without referring it to a panel of three. Having found no violation, we need not consider whether petitioners were prejudiced by the way the appeal was handled.”

Petition Denied.

10-2063 Ward v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Bauer, J.

Full Text