Case: 13-11493    Date Filed: 11/18/2013   Page: 1 of 5


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-11493
                          Non-Argument Calendar
                        ________________________

                         Agency No. A097-386-670


DORRETT ANGELLA ROWE,
a.k.a. Dorrett Angella Brown,

                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                       ________________________

                   Petition for Review of a Decision of the
                        Board of Immigration Appeals
                         ________________________

                             (November 18, 2013)

Before CARNES, Chief Judge, PRYOR and JORDAN, Circuit Judges.

PER CURIAM:
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      Dorrett Rowe, a native and citizen of Jamaica, seeks review of the Board of

Immigration Appeals’ order affirming without opinion the Immigration Judge’s

denial of her application for a waiver of inadmissibility under 8 U.S.C. § 1182(h).

Rowe contends that the BIA deprived her of her due process rights by issuing a

form order that incorrectly identified the type of relief she had sought, making it

impossible to determine whether the BIA properly followed its own regulations.

      As an initial matter, we are obligated to review our subject matter

jurisdiction over Rowe’s petition for review. Gonzalez-Oropeza v. U.S. Att’y

Gen., 

, 1332 (11th Cir. 2003). We generally lack jurisdiction to

review any claim by “an alien who is removable by reason of having committed a

criminal offense” covered in 8 U.S.C. § 1182(a)(2), which was the conceded basis

for Rowe’s removability. 8 U.S.C. § 1252(a)(2)(C). We also lack jurisdiction to

review any claim by an alien regarding the granting of relief under 8 U.S.C.

§ 1182(h), which is the statutory basis for the waiver of inadmissibility that Rowe

sought. See 8 U.S.C. § 1252(a)(2)(B)(i). Rowe’s contention that the BIA’s

summary affirmance violated her due process rights, however, is a constitutional

claim, which we retain jurisdiction to consider. See 8 U.S.C. § 1252(a)(2)(D).

      We review de novo constitutional challenges. Lonyem v. U.S. Att’y Gen.,

, 1341 (11th Cir. 2003). When the BIA issues a summary

affirmance of an IJ’s opinion under 8 C.F.R. § 1003.1(e)(4), we review the IJ’s

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opinion as the final agency decision. See Mendoza v. U.S. Att’y Gen., 

, 1284 n.1 (11th Cir. 2003); see also Alim v. Gonzales, 

, 1254

(11th Cir. 2006).

      To ensure due process, the BIA is required to follow its own regulations

when exercising its discretion and issuing a decision. See United States ex rel.

Accardi v. Shaughnessy, 

, 267-68, 

, 503-04 (1954). We

have rejected a due process challenge to the BIA’s one-judge affirmance-without-

opinion procedure. See 

(recognizing that the Supreme

Court’s directive that absent constitutional constraints, “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.”)

(quotation marks omitted).

      Regulations provide that a single BIA member may affirm an IJ’s decision

without opinion if:

      . . . the Board member 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) [t]he 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

      (B) [t]he factual and legal issues raised on appeal are not so
      substantial that the case warrants issuance of a written opinion in the
      case.

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8 C.F.R. § 1003.1(e)(4)(i). We have recognized that “under the INS regulations,

no entitlement to a full opinion by the BIA exists,” and the issuance of a one-

sentence order is not “evidence that the BIA member did not review the facts of

[the petitioner’s] case.” 

.

      Rowe’s due process rights were not violated just because the BIA issued a

form order affirming the IJ’s decision without opinion. See 

In the

caption of the case the BIA did misidentify the form of relief that had been applied

for as “asylum,” but nothing in the record indicates that the BIA entirely failed to

review Rowe’s appeal or deviated from the regulatory requirements in determining

whether the appeal met the criteria for the summary affirmance procedure. See 

The BIA’s order explicitly stated that the IJ’s decision was the final

agency decision, and the IJ’s detailed 20-page opinion showed that he carefully

considered Rowe’s application for a § 212(h) waiver. Nothing in the record

persuades us that the BIA actually believed it was considering the denial of an

asylum application instead of a § 212(h) waiver of inadmissibility.

      Additionally, Rowe makes no argument that her case did not fit the

regulatory requirements for the affirmance-without-opinion procedure. The IJ’s

decision recounted Rowe’s and her husband’s testimony in detail and considered

letters that Rowe had submitted to the court. In accordance with precedent, the IJ

balanced the adverse factors evidencing Rowe’s undesirability as a permanent

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resident with the social and humane considerations presented on her behalf in order

to determine whether a grant of relief in the exercise of discretion would be in the

best interest of the United States. See In re Mendez-Moralez, 21 I. & N. Dec. 296,

299–300 (BIA 1996).

      After discussing in detail the evidence presented, the IJ concluded that the

adverse factors outweighed the positive ones. His decision states that he denied

Rowe’s application because she failed to show extreme hardship to her qualifying

relatives and she did not warrant relief as a matter of discretion. Those conclusions

involved the application of statutes and existing BIA precedent and did not involve

any novel factual situation, making summary affirmance appropriate under BIA

regulations. See 8 C.F.R. § 1003.1(e)(4)(i)(A). Furthermore, in Rowe’s appeal to

the BIA, she merely challenged the IJ’s factual determination that she had not

shown extreme hardship, as well as the IJ’s discretionary denial. For those

reasons, the factual and legal issues raised on appeal were not so substantial that

the case warranted issuance of a written opinion. See 

      PETITION DENIED.




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