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34654
Proposed Rules Federal Register
Vol. 73, No. 118
Wednesday, June 18, 2008
This section of the FEDERAL REGISTER unusual issues of law or fact. Third, this Posting of Public Comments: Please
contains notices to the public of the proposed rule amends the regulations relating to note that all comments received are
issuance of rules and regulations. The precedent decisions of the Board by considered part of the public record and
purpose of these notices is to give interested authorizing publication of decisions made available for public inspection
persons an opportunity to participate in the either by a majority of the panel
rule making prior to the adoption of the final
online at www.regulations.gov. Such
rules.
members or by a majority of permanent information includes personal
Board members and clarifying the identifying information (such as your
relevant considerations for designation name, address, etc.) voluntarily
DEPARTMENT OF JUSTICE of precedents. These revisions submitted by the commenter.
implement, in part, the Memorandum
If you want to submit personal
Executive Office for Immigration for Immigration Judges and Members of
identifying information (such as your
Review the Board of Immigration Appeals
name, address, etc.) as part of your
issued by the Attorney General on
comment, but do not want it to be
8 CFR Part 1003 August 9, 2006.
posted online, you must include the
[EOIR Docket No. 159P; AG Order No. 2976 DATES: Comment date: Comments may phrase ``PERSONAL IDENTIFYING
2008] be submitted not later than August 18, INFORMATION'' in the first paragraph
2008. of your comment. You must also locate
RIN 1125AA58
ADDRESSES: You may submit comments, all the personal identifying information
Board of Immigration Appeals: identified by EOIR Docket No. 159P, by you do not want posted online in the
Affirmance Without Opinion, Referral one of the following methods: first paragraph of your comment and
for Panel Review, and Publication of · Federal eRulemaking Portal: http:// identify what information you want
Decisions as Precedents www.regulations.gov. Follow the redacted.
instructions for submitting comments.
AGENCY: Executive Office for If you want to submit confidential
· Mail: John Blum, Acting General
Immigration Review, Justice. business information as part of your
Counsel, Executive Office for
ACTION: Proposed rule with request for comment but do not want it to be posted
Immigration Review, 5107 Leesburg
comments. online, you must include the phrase
Pike, Suite 2600, Falls Church, Virginia
``CONFIDENTIAL BUSINESS
22041. To ensure proper handling,
SUMMARY: This proposed rule would INFORMATION'' in the first paragraph
please reference EOIR Docket No. 159P
amend the Department of Justice of your comment. You must also
on your correspondence. This mailing
(Department) regulations regarding the prominently identify confidential
address may also be used for paper,
administrative review procedures of the business information to be redacted
disk, or CDROM submissions.
Board of Immigration Appeals (Board) within the comment. If a comment has
in three ways. First, this rule provides · Hand Delivery/Courier: John Blum,
so much confidential business
greater flexibility for the Board to Acting General Counsel, Executive
information that it cannot be effectively
decide, in the exercise of its discretion, Office for Immigration Review, 5107
redacted, all or part of that comment
whether to issue an affirmance without Leesburg Pike, Suite 2600, Falls Church,
Virginia 22041; telephone (703) 305 may not be posted on http://
opinion (AWO) or any other type of www.regulations.gov.
decision. This rule clarifies that the 0470 (not a toll-free call).
FOR FURTHER INFORMATION CONTACT: John Personal identifying information
criteria the Board uses in deciding to
Blum, Acting General Counsel, identified and located as set forth above
invoke its AWO authority are solely for
Executive Office for Immigration will be placed in the agency's public
its own internal guidance, and that the
Review, 5107 Leesburg Pike, Suite 2600, docket file, but not posted online.
Board's decision depends on the Board's
Falls Church, Virginia 22041; telephone Confidential business information
judgment regarding its resources and is
(703) 3050470 (not a toll-free call). identified and located as set forth above
not reviewable. The revision related to
will not be placed in the public docket
AWO is needed to address divergent SUPPLEMENTARY INFORMATION:
file. If you wish to inspect the agency's
precedent in the United States Courts of
I. Public Participation public docket file in person by
Appeals regarding the reviewability of
the Board's decision to issue an AWO. Interested persons are invited to appointment, please see the ``For
Finally, this revision clarifies that when participate in this rulemaking by Further Information Contact'' paragraph.
the Board issues an AWO or a short submitting written data, views, or Docket: For access to the docket to
decision adopting some or all of the arguments on all aspects of this rule. read background documents or
immigration judge's decision, the Comments that will provide the most comments received, go to http://
decision is generally based on issues assistance to the Department of Justice www.regulations.gov. Submitted
and claims of errors raised on appeal will reference a specific portion of the comments may also be inspected at the
mstockstill on PROD1PC66 with PROPOSALS
and is not to be construed as waiving a rule, explain the reason for any Executive Office for Immigration
party's obligation to raise issues and recommended change, and include data, Review, 5107 Leesburg Pike, Suite 2600,
exhaust claims of error before the Board. information, or authority supporting the Falls Church, Virginia 22041. To make
Second, this rule expands the authority recommended change. an appointment, please contact the
to refer cases for three-member panel All submissions received must Executive Office for Immigration
review for a small class of particularly include the agency name and EOIR Review at (703) 3050470 (not a toll free
complex cases involving complex or Docket No. 159P. call).
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Federal Register / Vol. 73, No. 118 / Wednesday, June 18, 2008 / Proposed Rules 34655
II. The Attorney General's Review its resources, and the need to adjudicate this new procedural device, however,
On January 9, 2006, Attorney General cases thoroughly and in a timely the Board's backlog of pending cases
Alberto Gonzales directed a manner and concluded that the basic continued to grow and the average
comprehensive review of the principles set forth in the Board reform period of time that cases remained
Immigration Courts and the Board. This rule were still necessary to prevent pending on appeal to the Board
review was undertaken in response to future backlogs and delays in lengthened considerably.
adjudication. Accordingly, the More than five years ago, Attorney
concerns about the quality of decisions
Department is not reopening or seeking General John Ashcroft published the
being issued by the immigration judges
public comment on the existing final Board reform rule. See 67 FR 54878
and the Board and about reports of
regulations that were adopted in 2002. (Aug. 26, 2002). That rule retained the
intemperate behavior by some
However, the Department has basic AWO process as introduced in
immigration judges.
concluded that three specific 1999, but expanded the use of
At that time, the Deputy Attorney
adjustments to the Board reform rule are affirmances without opinion by
General and the Associate Attorney
appropriate, and it is with respect to providing for the Board to issue an
General assembled a review team,
these three changes that we seek public AWO in any case when certain
which over the course of several months
comments. The proposed rule, regulatory criteria are met. Compare 8
conducted hundreds of interviews, CFR 3.1(a)(7)(ii) (2000) (providing that a
administered an online survey, and accordingly, would revise the
regulations governing the Board to (1) single Board member ``may'' affirm
analyzed thousands of documents to without opinion) with 8 CFR
assess the Executive Office for encourage the increased use of one-
member written opinions to address 1003.1(e)(4)(i) (2006) (providing that, in
Immigration Review (EOIR) adjudicative certain circumstances, a single Board
process. With regard to the Board's poor or intemperate immigration judge
decisions, instead of issuing affirmances member ``shall'' affirm without
appellate process, the review team opinion).1 Under the current
received much commentary about the without opinion, (2) allow for the use of
three-member written opinions to regulations, a single Board member will
streamlining and Board reform affirm an immigration judge's decision
regulations, specifically the Procedural provide greater legal analysis in a small
class of particularly complex cases, and without opinion when he or she is
Reforms To Improve Case Management satisfied that the immigration judge's
Rule, 67 FR 54878 (August 26, 2002) (3) authorize three-member panels, by
majority vote, to designate their decision reached the correct result, that
(``Board reform rule''). This rule any errors were harmless or
provided for improved case decisions as precedent decisions. The
Department has already published a nonmaterial, and that the issues on
management procedures and expanded appeal are either (1) squarely controlled
the number of cases that could be separate rule increasing the number of
Board members in order to carry out the by precedent and do not require an
referred to a single Board member for application of precedent to a novel
review. This new case management Board's expanded responsibilities. 71
FR 70855 (Dec. 7, 2006). factual scenario, or (2) are not so
system was intended to reduce delays in substantial as to warrant the issuance of
the appellate review process, reduce the III. Affirmance Without Opinion a written opinion in the case. See 8 CFR
backlog of pending cases, and allow 1003.1(e)(4)(i). When a single Board
Board members to focus more attention A. Mandatory and Discretionary
Affirmances Without Opinion member is satisfied that the regulatory
on cases presenting novel or significant criteria are met and issues an AWO, the
issues. Historically, with a few exceptions order will state that ``[t]he Board
Critics of the procedural reforms rule not mentioned here, the Board affirms, without opinion, the result of
speculated that the revised procedures adjudicated all of its cases in panels of the decision below. The decision below
allowed Board members insufficient three Board members. Those three- is, therefore, the final agency
time to review cases thoroughly and member panels generally issued full determination.'' 8 CFR 1003.1(e)(4)(ii).
made it more difficult for the Board to written decisions explaining the order When the Board member determines
publish adequate numbers of in each case. However, as the Board's that an AWO is not warranted in a case,
precedential decisions. Supporters caseload began to grow dramatically the current regulation provides that
observed that the reforms brought over the years, changes were necessary most such cases will be resolved by an
much-needed efficiency to the appellate to help the Board manage its docket. opinion issued by a single Board
process, which allowed the Board to In 1999, a regulatory amendment member rather than referred to a panel
eliminate a large backlog of cases and to authorized the Board to affirm the of three Board members. A single Board
adjudicate cases in a timely manner. decision of an immigration judge member may issue a decision that
On August 9, 2006, Attorney General without issuing a separate written affirms, modifies, or remands an
Gonzales announced that the review opinion. See Board of Immigration immigration judge's decision, and may
was complete, and he directed that a Appeals; Streamlining, 64 FR 56135 provide any explanation or address any
series of measures be taken to improve (Oct. 18, 1999). This kind of order is issue he or she deems appropriate. The
adjudications by the immigration judges called an affirmance without opinion majority of single member decisions, in
and the Board. EOIR is implementing (AWO), and the decision contains only fact, are not AWOs, but are fuller orders
most of those initiatives through two sentences prescribed by regulation, addressing the issues raised on appeal.
administrative and management actions, without any additional language or In fact, in fiscal year 2007, only 10% of
although several of the initiatives explanation about the reasons for the
require changes to the existing affirmance. See 8 CFR 1003.1(e)(4)(ii). 1 In 2003, the Attorney General redesignated the
mstockstill on PROD1PC66 with PROPOSALS
regulations. This rule is one of several The Board implemented the AWO previous regulations in 8 CFR part 3, relating to
EOIR, as 8 CFR part 1003 in connection with the
new regulatory actions resulting from process successfully, although the abolition of the former Immigration and
this senior level review, and process was initially utilized only in Naturalization Service and the transfer of its
implements three initiatives relating to certain categories of cases pending responsibilities to the Department of Homeland
before the Board, and all other cases Security (DHS). Under the Homeland Security Act,
the Board. EOIR (including the Board and the immigration
The Department considered the were still referred to a three-member judges) remains under the authority of the Attorney
Board's current and predicted caseload, panel for decision. Despite the use of General. See 6 U.S.C. 521; 8 U.S.C. 1103(g).
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34656 Federal Register / Vol. 73, No. 118 / Wednesday, June 18, 2008 / Proposed Rules
the Board's decisions were issued as banc); Denko v. INS, 351 F.3d 717, 724 relief or protection from removal.
AWOs. 32 (6th Cir. 2003); Falcon Carriche v. Nevertheless, the Attorney General has
In addition to restructuring the Ashcroft, 350 F.3d 845 (9th Cir. 2003); concluded that some adjustments to the
decisional process, the Board reform Georgis v. Ashcroft, 328 F.3d 962 (7th Board's streamlining practices are now
rule set specific time limits for the Cir. 2003); Mendoza v. U.S. Att'y Gen., appropriate to improve the quality of
disposition of appeals after the record 327 F.3d 1283 (11th Cir. 2003); the Board's review of complex or
on appeal is completed and the case is Soadjede v. Ashcroft, 324 F.3d 830 (5th problematic cases while retaining the
ready for adjudication. See 8 CFR Cir. 2003); Albathani v. INS, 318 F.3d fundamentals of streamlining.
1003.1(e)(8). With rare exceptions, a 365 (1st Cir. 2003); Capital Area Attorney General Gonzales directed
Board member must adjudicate a case Immigrants' Rights Coalition v. U.S. the Board to increase the use of single-
within 90 days of completion of the Dep't of Justice, 264 F. Supp. 2d 14 member written opinions to address
record. If the case is referred to a three- (D.D.C. 2003). immigration judge decisions that are
member panel, the case must be The success of the reform regulation poor in quality and cases in which the
adjudicated within 180 days of referral. rests on both the ability of the Board to immigration judge's conduct during the
With the Board reform rule, the adjudicate the majority of cases by hearing was intemperate or abusive.
Department provided the Board with single-member review and the ability of This rule meets that objective by
powerful tools to address a burgeoning the Board to affirm the decision of an providing the Board with greater
number of appeals and a growing immigration judge without issuing a full flexibility to issue decisions that
backlog of cases. When he announced opinion. See Guyadin v. Gonzales, 449 respond to the concerns expressed by
the Board's restructuring in February F.3d 465, 469 (2d Cir. 2006) the federal circuit courts.
2002, Attorney General Ashcroft cited (highlighting the importance of the Under this rule, single Board
the size of the Board's backlog and the streamlining regulations to address a members will have discretion to decide
substantial delays in reaching final ``crushing backlog''). The number of whether to issue an AWO or to issue a
decisions as the basis for the reform. At decisions issued by a single Board written opinion with an explanation of
that time, 56,000 cases were pending member has remained relatively the reasons for the decision. The
before the Board. More than 10,000 of constant since the effective date of the existing regulations already provide that
those cases had been pending for more reform regulation. In contrast, the rate of a single Board member is not required
than three years and another 34,000 had AWOs has been decreasing. In fiscal to issue an AWO when there is a
been pending for more than one year. year 2003, approximately 36% of the substantial factual or legal issue in the
Presently, approximately 27,000 cases Board's decisions were AWOs. That case warranting the issuance of a
are pending at the Board--more than a number declined to approximately 32% written opinion, but this rule recognizes
50% decrease--even though the number in fiscal year 2004, 20% in fiscal year that Board members may choose to issue
of cases being filed with the Board has 2005, and 15% in fiscal year 2006. The either an AWO or a written opinion, as
remained very high, with 40,000 new AWO rate for fiscal year 2007 is only a matter of discretion, in cases where
cases received during FY2006. Except 10%. the regulatory criteria in 8 CFR
for cases on regulatory hold, see 8 CFR Despite the success of the Board's 1003.1(a)(4)(i) are met.
reform rule in addressing delays in In determining whether to exercise its
1003.1(e)(8)(ii), virtually none of the
decision times and in managing a very discretion to issue an AWO or a single-
27,000 current cases has been pending
heavy caseload, some courts of appeals member opinion, the Board may
for more than three years. The vast
have levied pointed criticism in some consider available resources to balance
majority of the pending cases were filed
cases where the immigration judge's the need to complete cases efficiently
in FY2007 or 2008; only 10 percent
conduct was intemperate or abusive, while evaluating whether there is a need
were filed in FY2006. In short, the
raising the concern that such conduct to provide further guidance to the
Board has essentially eliminated the
was not adequately addressed by the immigration judge, the parties, and the
backlog of pending appeals and reduced
Board's decisions, particularly in cases federal courts through a written
the time for processing appeals and decision addressing the issues in a case.
where the Board issued an AWO. See,
motions in compliance with the The Board is best positioned to assess
e.g., Fiadjoe v. U.S. Att'y Gen., 411 F.3d
regulatory time frames governing the its resources and the importance of
135 (3d Cir. 2005); Cham v. U.S. Att'y
completion of cases.2 various competing demands, because
Gen., 445 F.3d 683, 69394 (3d Cir.
Although individuals have challenged the Board sees the full expanse of issues
2006); Huang v. Gonzales, 453 F.3d 142
the Board reform rule on due process presented in the more than 40,000 cases
(2d Cir. 2006). Some courts of appeals
and administrative law grounds, the filed each year from decisions of the
have also criticized the quality of the
federal courts have consistently immigration judges and of DHS service
immigration judge and Board decisions.
affirmed the Attorney General's centers or other adjudicating officers in
See Benslimane v. Gonzales, 430 F.3d
authority to adopt the rule. See Blanco those cases subject to review by the
828 (7th Cir. 2005), and cases cited
de Belbruno v. Ashcroft, 362 F.3d 272 Board. The Board is thus able to see
therein. The criticism has been limited
(4th Cir. 2004); Zhang v. United States to a relatively small number of cases recurring problems or issues arising in
Dep't of Justice, 362 F.3d 155 (2d Cir. and a minority of circuit courts. the decisions under review.
2004); Yuk v. Ashcroft, 355 F.3d 1222 Moreover, the overall rate at which the The Board may consider exercising its
(10th Cir. 2004); Dia v. Ashcroft, 353 federal courts have overturned Board discretion to issue a written order in
F.3d 228, 23845 (3d Cir. 2003) (en decisions on judicial review has those cases in which the immigration
2 The regulatory time frames relate to the period
remained fairly constant, averaging only judge's decision would otherwise meet
mstockstill on PROD1PC66 with PROPOSALS
beginning when the record is complete and the case
10 to 12 percent. It should also be borne the criteria for AWO, but the
is ready for adjudication. At present, the principal in mind that only the aliens are able to immigration judge exhibited
cause of delay in the Board's adjudications relates petition for review in the circuit courts. inappropriate conduct at the hearing or
to the time required for preparation of transcripts DHS may not appeal adverse Board made intemperate comments in the oral
of the immigration judge proceedings and other
steps needed to complete the record. EOIR is
decisions to the courts of appeals; thus, decision. Likewise, the Board may
already working to reduce those delays in response the courts never see the thousands of consider issuing single-member
to another Attorney General directive. cases in which the aliens are granted opinions in those cases in which the
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Federal Register / Vol. 73, No. 118 / Wednesday, June 18, 2008 / Proposed Rules 34657
infirmities in the decision under review F.3d 1347, 135558 (10th Cir. 2004). In and unnecessary layer of review about
are not prejudicial, but are of such a particular, the Tenth Circuit found it an issue--the Board's decision to affirm
nature and extent that the Board may lacked jurisdiction to review the Board's without opinion rather than affirm with
find it appropriate to address the basis procedural decision to issue an AWO, as an opinion--that does not resolve the
for the decision. Examples include opposed to a single-member decision dispositive issue, namely whether the
where the immigration judge reaches with an opinion or a three-member underlying decision of the immigration
the correct result but does not provide decision. The court noted that when the judge withstands review.
a complete analysis, the immigration Board affirms an immigration judge's The Sixth and Seventh Circuits have
judge's analysis includes some decision without opinion, the not squarely decided the reviewability
immaterial or technical error, or the immigration judge's decision becomes issue. However, both circuits have
immigration judge fails to include the final agency decision. The Tenth suggested that, although the Board's
citations to applicable precedent or Circuit concluded that because the decision to issue an AWO may be
regulations. While the result may be Immigration and Nationality Act vests separately reviewable, the review of the
correct and the errors harmless, the jurisdiction in the courts of appeals to decision to AWO often will merge with
Board member may consider that, in review a ``final order of removal,'' the the review of the underlying decision of
these kinds of cases, further explanation court was without jurisdiction to review the immigration judge. See Denko v.
is warranted. the Board's AWO decision because an INS, 351 F.3d 717, 73132 (6th Cir.
AWO is not in the nature of a final 2003); Georgis v. Ashcroft, 328 F.3d 962,
B. Reviewability 96667 & n.4 (7th Cir. 2003). Where
agency decision. Id. at 1353. The Tenth
With the greater level of flexibility Circuit also concluded that because the those decisions essentially merge, the
afforded by this rule, the Board is better decision to issue an AWO is committed Seventh Circuit has stated that ``it
situated to address the concern to the Board's discretion, the makes no practical difference whether
expressed by some courts that AWOs Administrative Procedure Act did not the BIA properly or improperly
allow room for confusion in the record confer jurisdiction on the circuit courts streamlined review.'' Georgis v.
about the basis for the Board's decision, to review the Board's decision to issue Aschcroft, supra at 967; see also
and thus, the jurisdiction of the federal an AWO. Id. at 1355. Hamdan v. Gonzales, 425 F.3d 1051
circuit courts. See generally Lanza v. The Fourth Circuit has reached a (7th Cir. 2005).
Ashcroft, 389 F.3d 917 (9th Cir. 2004). conclusion similar in effect to the The inconsistency in the circuit
The Department acknowledges the high decisions of the Eighth and Tenth courts has prompted the Department to
volume of cases now pending before the Circuits. The Fourth Circuit held that propose a revision to the regulatory
courts of appeals and sees this rule as even if the Board's decision to issue an language. The rule clarifies that the
a means of addressing some of the AWO is erroneous, the court simply decision to issue an AWO is
courts' concerns and of promoting reviews the merits of the underlying discretionary and is based on an
greater uniformity in the way the courts decision of the immigration judge. See internal agency directive created for the
review administrative decisions. Blanco de Belbruno v. Ashcroft, 362 purpose of efficient case management
Existing regulations establish that F.3d 272, 281 (4th Cir. 2004) (analyzing that does not create any substantive or
when the Board issues an AWO, the the similar AWO provision previously procedural rights. The Board reform rule
decision of the immigration judge found at 8 CFR 3.1(a)(7)). In sum, the was successful in creating procedures
becomes the ``final agency Fourth, Eighth, and Tenth Circuits do that increased efficiency and promoted
determination.'' 8 CFR 1003.1(e)(4)(ii). not review the Board's decision to issue finality in immigration cases without
Although the immigration judge's an AWO, but simply review the merits sacrificing fairness. The additional layer
decision becomes the ``final agency of the underlying decision, as of review in some circuits is not
determination,'' the Board remains the prescribed by the language in the consistent with the reform rule's goal of
final agency decision maker exercising Board's AWO order. promoting efficiency and finality in the
the authority delegated by the Attorney In contrast, the Third Circuit has immigration system. The efficient and
General. It is the Board's AWO that concluded that the Board's decision to fair adjudication of immigration appeals
triggers the time period for seeking issue an AWO is reviewable, separate remains a priority of the Department.
review in a circuit court. When an alien and apart from the question of whether This revision to the AWO regulation in
petitions for review following the the underlying merits decision is no way reflects a diminished
Board's issuance of an AWO, the courts supported. See Smriko v. Ashcroft, 387 commitment to timely and fair
review the merits of the immigration F.3d 279, 29095 (3d Cir. 2004). The adjudications at the administrative
judge's decision. First Circuit also regards as reviewable level. In light of the strict regulatory
Some circuits, however, have the Board's determination of whether time frames governing the adjudication
concluded that, in addition to reviewing the AWO criteria exist in a particular of appeals and the Board's decreasing
the merits of the underlying case. See Haoud v. Ashcroft, 350 F.3d use of AWOs, the Department expects
immigration judge's decision, the court 201 (1st Cir. 2003). A divided panel of that the Board will continue to manage
may also review the Board's decision to the Ninth Circuit reached the same its docket efficiently following this
issue an AWO, as opposed to another conclusion in Chen v. Ashcroft, 378 revision to the AWO procedure.
type of order. Other circuits have F.3d 1081, 1088 (9th Cir. 2004). The
reached the opposite conclusion. This court in Chen concluded that, unless the C. Scope of Board's Dispositions on
inconsistency threatens the goal of the underlying issue in a case rests on a Appeal
Board's procedural reforms: securing discretionary determination, it has Finally, this rule clarifies that, when
mstockstill on PROD1PC66 with PROPOSALS
finality in immigration cases as jurisdiction to review whether the use of the Board chooses to issue an AWO or
efficiently as possible. an AWO was appropriate. Such review a short order adopting all or part of the
The Eighth and Tenth Circuits have causes the court to examine the immigration judge's decision, that
concluded that the Board's decision to propriety of the Board's decision to decision is based not only on the nature
issue an AWO is not reviewable. See apply its AWO authority and summarily of the case and whether it fits the
Ngure v. Ashcroft, 367 F.3d 975, 98188 affirm the immigration judge's decision. criteria for AWO, but also on the nature
(8th Cir. 2004); Tsegay v. Ashcroft, 386 This approach results in a superfluous of the issues and claims of error
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34658 Federal Register / Vol. 73, No. 118 / Wednesday, June 18, 2008 / Proposed Rules
properly raised on appeal. The Board's an issue on appeal to the Board (noting that ``[a]s the respondent does
decision to issue an AWO or short order constitutes failure to exhaust not raise this issue on appeal, we
affirming the immigration judge's administrative remedies or preserve the decline to address it''); Matter of
decision should not be construed as issue for appeal, and deprives the courts Gutierrez, 19 I&N Dec. 562, 565 n.3 (BIA
waiving a party's obligation to exhaust of appeal of jurisdiction to consider the 1988) (stating that ``[a]s the Service does
issues and claims before the Board. issue. See Rivera-Zurita v. INS, 946 F.2d not directly raise this issue on appeal,
While it is true that the Board has the 118 (10th Cir. 1991); Ravindran v. INS, we shall not address it'').
discretion to consider issues not raised 976 F.2d 754 (1st Cir. 1992); Farrokhi v. When the Board invokes its AWO
on appeal, this does not excuse a party INS, 900 F.2d 697 (4th Cir. 1990); authority or issues a short decision
from filing a Notice of Appeal and Martinez-Zelaya v. INS, 841 F.2d 294 adopting the immigration judge's
supporting brief that are sufficiently (9th Cir. 1988); Campos-Guardado v. decision, there is no cause to depart
precise in identifying any claims, errors, INS, 809 F.2d 285 (5th Cir. 1987);