A-P

Interim Decision #3375




                              In re A-P-, Respondent

                               Decided January 26, 1999

                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals


(1) A summary decision pursuant to 

(b) (1998) may properly be issued by
an Immigration Judge in removal proceedings in lieu of an oral or written decision only when
the respondent has expressly admitted to both the factual allegations and the charges of
removability; and, either the respondent’s ineligibility for any form of relief is clearly established on the pleadings; or, after appropriate advisement of and opportunity to apply for any
form of relief for which it appears from the pleadings that he or she may be eligible, the
respondent chooses not to apply for relief or applies only for, and is granted, the relief of voluntary departure.

(2) A summary decision should adequately link the respondent’s admissions to the factual
allegations and the charges of removability to the applicable law.

(3) When an Immigration Judge issues an oral decision, the transcribed oral decision shall be
included in the record in a manner that clearly separates it from the remainder of the transcript.

Sandrine Lisk-Anani, Esquire, Wichita, Kansas, for respondent

Richard J. Averwater, Assistant District Counsel, for the Immigration and Naturalization
Service

Before:    Board En Banc: SCHMIDT, Chairman; VACCA, HEILMAN, VILLAGELIU,
           COLE, ROSENBERG, MATHON, GUENDELSBERGER, and JONES, Board
           Members. Concurring and Dissenting Opinion: HOLMES, Board Member, joined
           by DUNNE, Vice Chairman; HURWITZ, FILPPU, GRANT, and SCIALABBA,
           Board Members.

HEILMAN, Board Member:

    We have jurisdiction over this timely appeal pursuant to 

(b) (1998). The respondent has appealed the Immigration Judge’s
January 29, 1998, “decision,” which ordered his removal to Laos. We have
reviewed the regulations relevant to the form and content of Immigration
Judges’ decisions in removal proceedings, and we have additionally considered the principles of fundamental fairness, adequate notice, and the effi-

                                              468
                                                                    Interim Decision #3375


cient administration of appeals. Because we conclude that a proper decision
has not been issued in this case, we will remand the record to the
Immigration Judge for preparation of an appropriate decision.


                               I. SUMMARY OF FACTS

     At a hearing before the Immigration Judge, the 22-year-old respondent,
who was at that time unrepresented by counsel, admitted to the allegations
in the Notice to Appear (Form I-862). His admissions to the factual allegations establish that, after he was paroled into the United States as a refugee
and subsequently adjusted his status to that of a lawful permanent resident,
he was convicted on May 3, 1995, in the District Court of Sedgwick
County, Kansas, of two counts of aggravated assault, for which he was sentenced to concurrent 16-month terms of imprisonment.
     The respondent did not expressly concede that this offense rendered
him removable as charged under sections 237(a)(2)(A)(iii) and (C) of the
Immigration and Nationality Act, 

(a)(2)(A)(iii) and (C)
(Supp. II 1996).1 After the respondent expressed his fear of persecution
should he be required to return to his native country of Laos, the
Immigration Judge considered both oral testimony from the respondent and
documentary evidence of his conviction. The transcript of the hearing
reflects that the Immigration Judge advised the respondent that he was
statutorily ineligible for asylum due to his conviction for an aggravated
felony. The transcript also includes a brief discussion by the Immigration
Judge of the circumstances of the respondent’s offense, which concludes
with the Immigration Judge’s determination that the respondent’s conviction was for a particularly serious crime, rendering him ineligible for the
relief of withholding of removal.
     At the conclusion of the hearing, the Immigration Judge issued a document captioned “Order of the Immigration Judge” (“Order”). The text of
the January 29, 1998, Order simply states:
   Upon the basis of the respondent’s admissions, I have determined that the respondent
   is subject to removal on the charge(s) in the Notice to Appear.

   Respondent has made no application for relief from removal.

   It is HEREBY ORDERED that the respondent be removed from the United States to
   LAOS on the charge(s) contained in the Notice to Appear.



      1
       After the respondent admitted to the factual allegations, the Immigration Judge did not
require the respondent to admit or deny that he was removable as charged. See 

(c)
(1998). The Immigration Judge proceeded to advise the respondent as follows: “[B]ased on what
you’ve told me, I do find that you are subject to being removed from the United States.”

                                              469
Interim Decision #3375


     The Order concluded with the requisite “boilerplate” warnings pertaining to the future immigration consequences of failure to appear for removal
when so ordered by the Immigration and Naturalization Service. The Order
was signed and dated by the Immigration Judge. The respondent’s timely
appeal followed.


          II. REGULATIONS PERTAINING TO DECISIONS BY
         IMMIGRATION JUDGES IN REMOVAL PROCEEDINGS

     Concomitant with the creation of the new removal proceedings now
codified at section 240 of the Act, 8 U.S.C. § 1229a (Supp. II 1996), came
the implementing revisions to Title 8 of the Code of Federal Regulations.
While 

 (1998) remains in effect as the general regulation pertaining to decisions of Immigration Judges, a regulation specific to the decisions of Immigration Judges in removal proceedings may now be found at

 (1998). That regulation provides:
   (a) Contents. The decision of the immigration judge may be oral or written. The decision of the immigration judge shall include a finding as to inadmissibility or deportability. The formal enumeration of findings is not required. The decision shall also contain reasons for granting or denying the request. The decision shall be concluded with
   the order of the immigration judge.

   (b) Summary decision. Notwithstanding the provisions of paragraph (a) of this section,
   in any case where inadmissibility or deportability is determined on the pleadings pursuant to § 240.10(b) [sic]2 and the respondent does not make an application under §
   240.11, the alien is statutorily ineligible for relief, or the respondent applies for voluntary departure only and the immigration judge grants the application, the immigration judge may enter a summary decision or, if voluntary departure is granted, a summary decision with an alternate order of removal.

   (c) Order of the immigration judge. The order of the immigration judge shall direct the
   respondent’s removal, or the termination of the proceedings, or such other disposition
   of the case as may be appropriate. When removal is ordered, the immigration judge
   shall specify the country, or countries in the alternate, to which the respondent’s
   removal shall be directed. The immigration judge is authorized to issue orders in the
   alternative or in combination as he or she may deem necessary.

.

    Paragraph (a) of the regulation provides general guidelines for the
required content of a full oral or written decision. Paragraph (b) permits

     2
      We note that the regulation erroneously refers to 

(b) as the provision
pertaining to the respondent’s pleadings in removal proceedings. The correct provision is 

(c).

                                             470
                                                     Interim Decision #3375


Immigration Judges, in the limited circumstances described below, to issue
a decision in a more abbreviated format. The regulation refers to such decisions as “summary decisions” but is silent as to their required content.
Paragraph (c) pertains to the Immigration Judge’s order, which historically,
and by regulation, has been recognized as separate from the Immigration
Judge’s decision on the issues of removability and relief. Based on the title
and content of the document issued in this case, we would view it as the
“order of the immigration judge” described in § 240.12(c), rather than as a
decision. However, it appears that the Immigration Judge intended that his
January 28, 1998, Order serve as a summary decision under 

(b). We will review the regulatory requirements that must be satisfied
before a decision in summary form pursuant to § 240.12(b) is permitted.
Further, because we find that those requirements have not been met in this
case, we will discuss whether the Immigration Judge’s discussion within the
transcript suffices as a proper oral decision under § 240.12(a).


         III. REGULATORY REQUIREMENTS FOR ISSUING
                     SUMMARY DECISIONS

     While the regulations authorize an Immigration Judge to issue summary decisions in specifically defined circumstances, we have found increasingly that their use has not been confined to those specific circumstances
authorized by the regulations. The Immigration Judge’s issuance of a summary decision in the circumstances presented in this case may be consistent
with prior practice. However, the conditions imposed by the new regulations for the use of summary decisions have not been satisfied. The regulation at 

(b) expressly limits the use of summary decisions
to cases where “inadmissibility or deportability is determined on the pleadings pursuant to § 240.10[c].” See supra note 2.

    The regulations define when removability has been determined on the
pleadings as follows:

Pleading by respondent. The immigration judge shall require the respondent to plead to the notice to appear by stating whether he or she admits or
denies the factual allegations and his or her removability under the charges
contained therein. If the respondent admits the factual allegations and
admits his or her removability under the charges and the immigration judge
is satisfied that no issues of law or fact remain, the immigration judge may
determine that removability as charged has been established by the admissions of the respondent . . . . When, pursuant to this paragraph, the immigration judge does not accept an admission of removability, he or she shall
direct a hearing on the issues.

                                    471
Interim Decision #3375

(c) (1998) (emphasis added).
     When read in conjunction with § 240.12(b), § 240.10(c) confines the
Immigration Judge’s authority to issue a “summary decision” to those cases
where the respondent admits to the factual allegations and the charges of
removability, and “the immigration judge is satisfied that no issues of law
or fact remain.” In such circumstances, removability has been “determined
on the pleadings” without the need for any further evidentiary hearing. We
emphasize the requirement stated in § 240.10(c) that the alien “admits his
or her removability under the charges” in order for removability to be considered determined on the pleadings. This requirement is one that is frequently overlooked when Immigration Judges issue documents that they
consider to be appropriate summary decisions under § 240.12(b). The
requirement is not met when an Immigration Judge determines that an alien
is removable based solely on his or her admissions to the factual allegations,
as the regulation is specific in requiring an admission to the charges of
removability. 

(c). We also note that, in removal proceedings, which are initiated for the purpose of determining whether an alien
will be removed from this country, remaining “issues of law or fact,” which
would preclude the use of a summary decision under the regulation, would
necessarily include issues related to the alien’s apparent eligibility for relief
from removal.
     We note that 

(a)(2) (1998) imposes on Immigration
Judges the duty to “inform the alien of his or her apparent eligibility to
apply for any of the benefits enumerated in this chapter and shall afford the
alien an opportunity to make application during the hearing.” We therefore
read the regulations pertaining to removal proceedings as providing for the
use of a summary decision format only in cases where, based on the alien’s
admissions to the factual allegations and to the charges of removability, it
can be determined without further inquiry or analysis that he or she is ineligible for any form of relief; or, after the Immigration Judge has advised the
alien regarding any forms of relief for which he or she appears to be eligible, the alien does not seek to apply for relief from removal; or the alien has
sought and has been granted only the relief of voluntary departure. 

(c), 240.12(b). Accordingly, we find that the regulations impose
the following requirements for the issuance of a summary decision in lieu
of a full oral or written decision:
     (1) The respondent expressly admits to the factual allegations in the
Notice to Appear;
     (2) the respondent expressly admits that he or she is removable as
charged; and
     (3) one of the following conditions applies:
     (a) The respondent does not apply for any form of relief after having been
     advised by the Immigration Judge, in compliance with 

(a)(2),


                                         472
                                                                      Interim Decision #3375

         of any form of relief for which he or she is apparently eligible based on the pleadings and afforded an opportunity to apply for such relief at the hearing; or,

         (b) the respondent applies only for the relief of voluntary departure after having
         been advised by the Immigration Judge, in compliance with 

(a)(2), of any other form of relief for which he or she is apparently eligible based on the pleadings and afforded an opportunity to apply for such relief at
         the hearing, and voluntary departure is granted by the Immigration Judge; or

         (c) the respondent’s ineligibility for any form of relief is clearly established by
         the pleadings themselves, without the need for further fact-finding or analysis.


  IV. APPLICATION OF THE REGULATORY REQUIREMENTS FOR
       SUMMARY DECISIONS TO THE FACTS OF THIS CASE

     In the present case, the respondent did not expressly admit that he was
removable as charged, as is required before a summary decision may be
issued in lieu of a full oral or written decision. Further, even if the respondent had expressly admitted to the charges, issues relating to his eligibility
for withholding of removal would have remained unresolved. When an
alien has been convicted of an aggravated felony or felonies, unless the
pleadings establish that the aggregate term of confinement imposed is at
least 5 years, the admissions and concessions to the pleadings do not in
themselves establish statutory ineligibility for the relief of withholding of
removal. See section 241(b)(3) of the Act, 

(b)(3) (Supp. II
1996).3 The proceedings must continue to resolve the question of whether
or not the alien’s aggravated felony conviction is for a particularly serious
crime, rendering him or her statutorily ineligible for withholding of
removal.4 The Immigration Judge’s findings in this regard should be set
forth in his or her decision. The regulations do not confer authority to the
Immigration Judges to issue a summary decision when further fact-finding
or analysis is necessary to resolve an issue that remains after the respondent




     3
       The section 241(b)(3)(A) restriction on removing an alien to a country where the alien’s
life or freedom would be threatened does not apply when “the alien, having been convicted
of a particularly serious crime, is a danger to the community of the United States.” Section
241(b)(3)(B)(ii) of the Act. Section 241(b)(3)(B) further provides that “[f]or purposes of
clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which
the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be
considered to have committed a particularly serious crime.”
      4
        We note that the evidentiary hearing need not go beyond this issue once the
Immigration Judge has a proper basis for determining that the conviction is for a particularly
serious crime, and that denial of the application is therefore mandatory under section
241(b)(3)(B)(ii) of the Act and 

(c)(2) (1998).

                                                473
Interim Decision #3375


has admitted to the factual allegations and charges of removability. See 

(c), 240.12(b).
     We also note that the Immigration Judge’s “decision” does not completely portray what transpired at the hearing. The “Order” states that the
“Respondent has made no application for relief from removal.” In actuality, what happened was that the Immigration Judge pretermitted an application for withholding of removal after concluding, upon his consideration of
matters beyond the pleadings, that one of the grounds for mandatory denial
applied. While it is arguably correct that in one sense the respondent did not
formally apply for relief, it was clear that he desired to have his removal to
Laos withheld, but that his opportunity to do so was pretermitted following
an evidentiary hearing.5 We do not find that this is a circumstance under
which the regulations would contemplate a summary decision being
entered, rather than a decision that explains to the respondent why he or she
is being found ineligible for the desired relief from removal.


                V. CONTENTS OF SUMMARY DECISIONS

     Additionally, although the regulations are silent regarding the form
and content of a summary decision in removal proceedings, we expect
even these abbreviated decisions to link the admitted factual allegations to
the section or sections of the Act which determine the respondent’s
removability, and which determine his or her apparent eligibility for
relief. In those specified situations where the regulations provide for the
use of a summary decision, a full discussion of the relevant facts and
lengthy analysis of the law is not necessary. However, the Immigration
Judge’s decision is the means by which an alien is notified of the basis for
the Immigration Judge’s decision. A “generic” form like the one used in
this case, which does not meaningfully reflect any individualized assessment of the law applicable to the respondent’s case, undermines the very
crucial role played by Immigration Judges in the implementation of our
nation’s immigration laws. An Immigration Judge’s decision that lacks
reference to the controlling law may not provide an adequate opportunity
to the alien, who in many cases is unrepresented, to contest the
Immigration Judge’s determinations on appeal. See generally Matter of
M-P-, 

 (1994). As a result, this Board may be left without adequate means of performing its primary appellate function of
reviewing the bases stated for the Immigration Judge’s decision in light of
the arguments advanced on appeal. 

    5
     We note that there is no separate application form for withholding of removal.

                                          474
                                                                    Interim Decision #3375


     Accordingly, even when the regulatory requirements for the issuance of
a summary decision have been met, including the requirement that the
respondent admit to the charges of removability, a summary decision should
adequately link the respondent’s admissions to the statutory provisions
and/or legal precedent that are dispositive of the issues of his or her removability and relief. A summary decision, when used as contemplated by the
regulation, may be very brief. It may well be possible that forms may be
developed that allow the Immigration Judge to annotate relevant individual
information in such a way that there is a sufficient link between the admitted factual allegations and charges and the applicable law. For example, in
cases where an alien has admitted to the charge that he or she has been convicted of an aggravated felony, we would expect the Immigration Judge to
annotate the specific paragraph in section 101(a)(43) of the Act, 

(a)(43) (1994 & Supp. II 1996), within which the alien’s conviction
falls.
     Regarding the availability of relief from removal, we would consider it
appropriate for the Immigration Judge to make specific and pertinent annotations which advise the alien of the basis for the determination that he or
she is ineligible for relief. This connection between the alien’s admissions
to the pleadings and the specific statutory provision that renders the alien
ineligible for relief would provide the alien some measure of notice of the
basis for the Immigration Judge’s decision.6 When there is a controlling
legal precedent interpreting the relevant statute, that precedent should also
be noted. Alternatively, in those cases where the regulatory requirements for
the use of a summary decision are met and the alien’s admissions have not
foreclosed the possibility of relief, the summary decision should specify the
forms of relief for which the alien may be eligible, note that the alien was
properly advised of and provided an opportunity to apply for those forms of
relief, and state either that the alien did not seek to apply for relief, or that



      6
       We caution that in those cases where the alien has not been charged under section
237(a)(2)(A)(iii), and there is consequently no admission to a pleading alleging that an
offense for which he or she has admitted conviction is an aggravated felony, it is often necessary for the Immigration Judge to examine the record of conviction or complete further
analysis in order to make the legal determination that the admitted offense is an aggravated
felony, and that the alien is therefore statutorily ineligible for certain forms of relief.
Additionally, before an offense can be determined to be an aggravated felony under sections
101(a)(43)(B), (C), (D), (E), (F), (H), (I), (J), (K), (L), (M), or (P), an examination of the
record of conviction, as well as reference to, and analysis of, the federal statutes cited in those
sections of the Act, is generally necessary. In these circumstances, where the Immigration
Judge is required to consider matters outside the pleadings, we would find that the regulatory requirements for issuing a summary decision have not been met. Rather, an oral or written
decision reflecting the Immigration Judge’s application of the relevant law to the facts must
be issued.

                                              475
Interim Decision #3375


he or she sought only the relief of voluntary departure and such relief was
granted. 

(c), 240.11(a)(2), 240.12(b).


   VI. REFERENCE TO THE TRANSCRIPT TO DETERMINE THE
       BASIS FOR AN IMMIGRATION JUDGE’S “DECISION”

     Although it is apparent on this record that the Immigration Judge
intended that the January 29, 1998, Order serve as a summary decision
under 

(b), the Service takes the position that the
Immigration Judge has issued a factually and legally correct oral decision.
Although § 240.12(a) does not describe the physical aspects of a proper oral
decision, we find that the appellate process is best served when the oral
decision is set apart from the transcript of the proceedings such that it is
readily identifiable as the Immigration Judge’s complete decision. In the
case before us, the transcript contains scattered findings of fact and conclusions of law, but there is no clearly defined “decision” by the Immigration
Judge.
      “The Board is an appellate body whose function is to review, not to
create, a record.” Matter of Fedorenko, 

 (BIA 1984).
The regulation pertaining to the contents of the record in removal proceedings, 

 (1998), provides that “[t]he hearing before the immigration judge, including the testimony, exhibits, applications, proffers, and
requests, the immigration judge’s decision, and all written orders, motions,
appeals, briefs, and other papers filed in the proceedings shall constitute the
record in the case.” We view § 240.9 as contemplating an Immigration
Judge’s decision that is a separate and distinct part of the record from the
transcript of the testimony.
     Additionally, aliens facing removal from this country, this Board, and
reviewing federal circuit courts of appeals should not be required to pore
through the transcript of proceedings to find the Immigration Judge’s decision. We note that, in many cases, an Immigration Judge will make determinations on the issue of removability at the master calendar hearing and
will make determinations regarding the respondent’s eligibility for various
forms of relief at subsequent hearings. We have increasingly been confronted with instances where the Immigration Judge’s findings of fact and
conclusions of law are scattered throughout the transcript and made piecemeal during hearings that take place on different days. Even when the
Immigration Judge states his or her oral decision at the conclusion of the
final hearing, it is frequently not clearly identified as the oral decision in the
transcript, and at times is set forth in a manner that leaves the parties and
the Board to speculate as to where the decision begins and ends, and
whether additional legal and factual determinations have been pronounced
elsewhere in the transcript.

                                      476
                                                                    Interim Decision #3375


     Accordingly, when an oral decision is rendered, the record should
include a complete decision of the Immigration Judge in a manner that
                                                              7
clearly separates it from the transcript of the proceedings. In addition to
being required to separate the decision from the transcript of the hearing,
the Immigration Judge is also responsible for the substantive completeness
of the decision. Although there is no formal requirement for the
Immigration Judge to list each factual finding, an oral decision must accurately summarize the relevant facts, reflect the Immigration Judge’s analysis of the applicable statutes, regulations, and legal precedents, and clearly
set forth the Immigration Judge’s legal conclusions.


                                   VII. CONCLUSION

     As we have discussed, the regulatory requirements for the issuance of
a summary decision under 

(b) have not been met in this
case. Additionally, to the extent that the Immigration Judge may have
intended that his discussion in the transcript alternatively serve as an oral
decision under § 240.12(a), we find that the overlapping concerns of fundamental fairness and the efficient administration of the appellate process
require that when an oral decision is rendered, it be identified as such and
separated from the transcript of proceedings. Accordingly, this record is
remanded to the Immigration Judge for the inclusion of an appropriate oral
or written decision. The respondent and the Immigration and Naturalization
Service should be served with a copy of the decision. The record should
then be forwarded to the Board for the setting of a briefing schedule, as provided in 

(c)(1) (1998), and for our subsequent consideration
of the appeal.8
     ORDER: The record is remanded to the Immigration Court for further proceedings consistent with this opinion.


      7
        We recognize that there may be instances where the Immigration Judge has issued a full
and uninterrupted oral decision at the conclusion of the hearing, but that, for some reason, the
transcriber does not separate the decision from the remainder of the transcript. If the oral decision is readily identifiable as such, and it is fully and uninterruptedly contained at the end of
the transcript, we may find it unnecessary to remand for the sole purpose of breaking the decision apart from the transcript as a whole. As a general rule, however, we will require that the
decision be physically separated from the transcript.
      8
        During the pendency of this appeal, the respondent filed a motion to remand the record
to the Immigration Court for consideration of a request for relief pursuant to Article 3 of the
United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment. The Immigration Judge need not address the motion on remand.
Our recent decision in Matter of H-M-V-, 

 (BIA 1998), which holds that
neither the Immigration Judge nor this Board has jurisdiction over such claims, is dispositive
of the respondent’s motion.

                                              477
Interim Decision #3375


Board Member Anthony C. Moscato did not participate in the decision in
this case.

CONCURRING AND DISSENTING OPINION: David B. Holmes, Board
Member, in which Mary Maguire Dunne, Vice Chairman; Lauri Steven
Filppu, Edward R. Grant, Gerald S. Hurwitz, and Lori L. Scialabba, Board
Members, joined

     I respectfully concur in part and dissent in part.
     The majority opinion sets forth the regulatory requirements that must
be satisfied before an Immigration Judge may issue a summary decision
under the provisions of 

(b) (1998) and concludes that, in
this case, the use of a summary decision was improper. The majority further
discusses what should be contained in a summary decision in those cases
where the regulatory requirements for issuing a summary decision have
been met. Finally, the majority provides a general discussion of oral decisions, concluding that oral decisions should be separate documents, rather
than part of the transcript. The majority finds that a proper decision was not
issued in this case and remands the record for the preparation of a full oral
or written decision.
      I concur that remand is appropriate in the circumstances presented in
this case. However, I write separately to express my understanding of the
regulatory requirements for the issuance of summary decisions; to dissent
from those parts of the majority opinion in which I believe that the majority has unnecessarily imposed requirements on Immigration Judges beyond
those stated or contemplated by the current regulations; and to clarify that I
would adhere to the principle of “harmless error” and ordinarily would not
remand a record solely on the basis of the format of the Immigration
Judge’s decision, in the absence of some prejudice to the respondent, particularly where no challenge to the adequacy of the Immigration Judge’s
decision is raised on appeal.


             I. REGULATORY REQUIREMENTS FOR THE
                ISSUANCE OF A SUMMARY DECISION

    I generally agree with the majority’s discussion regarding the circumstances under which the issuance of a summary decision is appropriate
under the provisions of 

(b). That regulation specifically
requires that removability must be determined on the pleadings “pursuant to
[8 C.F.R.] § 240.10[c].” 

(b) (altered to include correct
subsection). In addition to requiring an admission to the factual allegations,
a requirement that was satisfied in this case, 

(c) (1998)
requires an admission that the alien is removable under the charges, a con-

                                     478
                                                       Interim Decision #3375


cession that was lacking in this case. I agree with the majority that a summary decision should not be entered under 

(b) unless “the
respondent admits the factual allegations and admits his or her removability under the charges.” 

(c).
     The regulations also require that the Immigration Judge must be “satisfied that no issues of law or fact remain” before determining removability
based on a respondent’s admissions. 

(c). I do not agree
with the majority’s view of the meaning of this language. The majority finds
that this phrase “necessarily include[s] issues related to the alien’s apparent
eligibility for relief from removal.” Matter of A-P-, 

, at
472 (BIA 1999). However, particularly when read in context, it would seem
clear that the “issues of law or fact” language refers to issues pertinent to
removability, rather than to relief. This language is most reasonably read as
meaning that, irrespective of an alien’s admission to removability, an
Immigration Judge should not order an alien removed on the basis of the
pleadings alone when the Immigration Judge has reason to believe that the
respondent may not, in fact, be subject to removal. For example, if, in the
course of the proceedings, an alien raises facts which suggest a claim to
United States citizenship, or which indicate that the conviction on which
removability is premised is on direct appeal, the regulations do not contemplate that an order of removal would be entered “on the pleadings” without such issues of law or fact being resolved. In such situations, where the
Immigration Judge must go beyond the pleadings to determine removability, the regulations do not permit the issuance of a summary decision.
Rather, a decision should be entered that addresses and resolves these
remaining issues of law or fact.
     Interpreting the “issues of law or fact” phrase as referring only to issues
related to removability is supported by the manner in which the general regulations relating to procedures in removal proceedings are structured. See 

, 240.11, 240.12 (1998). Matters pertaining to relief from
removal are separately and specifically covered in § 240.11(a)(2), which
discusses the Immigration Judge’s duty to inform the alien of his or her
apparent eligibility for relief, and to afford the alien an opportunity to apply
for such relief.
     The principal point of the § 240.12(b) requirement that removability
must be “determined on the pleadings,” as “pleading by the respondent” is
defined in § 240.10(c), is that a summary decision is not appropriate in
cases where an alien either does not specifically admit his removability, or
where removability is admitted, but the Immigration Judge nonetheless
determines that issues of law or fact relating to the alien’s removability
remain to be resolved.
     The regulation itself treats the precondition that removability be established on the pleadings as separate from the requirement that there be no
issues regarding the alien’s eligibility or desire to apply for relief. Under §

                                     479
Interim Decision #3375


240.12(b) a summary decision may be entered by the Immigration Judge
“in any case where inadmissibility or deportability is determined on the
pleadings pursuant to § 240.10(b) [sic] and the respondent does not make
an application under § 240.11, the alien is statutorily ineligible for relief, or
the respondent applies for voluntary departure only and the immigration
judge grants the application.” (Emphasis added.) Thus, the issue of relief
appears to be a distinct question from the determination of removability on
the pleadings when assessing whether a summary decision may be issued.
      Satisfaction of the additional requirements in § 240.12(b) for the issuance
of a summary decision presents its own set of problems, as the phrases “the
alien is statutorily ineligible for relief” and “the respondent does not make an
application” are open to differing interpretations. For example, turning first to
the “statutorily ineligible” language, if pushed to its extreme, an argument
could be made that, after determining removability on the pleadings, an
Immigration Judge could hold extensive evidentiary hearings on the issue of
relief, conclude that the alien did not meet his or her burden of establishing
statutory eligibility, and then issue a summary decision on the theory that the
alien was statutorily ineligible for relief. Thus, in theory, a hearing on the issue
of the “exceptional and extremely unusual hardship” that is statutorily required
for the relief of cancellation of removal under section 240A(b)(1) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1) (Supp. II 1996),
could end with the Immigration Judge concluding that this statutory requirement was not satisfied, and the issuance of a summary decision without discussion of the reasons for the finding that the hardship requirement had not
been met. Obviously, this is not what is intended by § 240.12(b).
      However, where the precise line should be drawn for determining when
it is appropriate for issuance of a summary decision on a “statutorily ineligible for relief” basis is subject to argument. The majority construes this
language narrowly, requiring that the alien’s statutory ineligibility for relief
be evident from the pleadings. Where further analysis and fact-finding is
required before it can be determined that an alien is ineligible for relief, the
majority finds a summary decision impermissible under the regulations.
      Certainly, an argument can be made for interpreting the “statutorily
ineligible for relief” language somewhat more broadly. I would find it reasonable to interpret this regulatory provision to permit going beyond the
pleadings and considering other admitted or uncontested facts in determining whether a summary decision was appropriate.9 However, the majority’s


     9
      For example, there are crimes that are defined as aggravated felonies without regard to the sentence imposed. In such cases, the factual allegations in the charges need not reference the relevant
sentence. If a respondent who concedes removability as an alien convicted of such an aggravated
felony also admits that he or she was sentenced to a term of imprisonment of at least 5 years, I think
one could reasonably interpret § 240.12(b) as permitting the issuance of a summary decision.

                                                480
                                                       Interim Decision #3375


position is not unreasonable and presents the practical advantage of drawing a clear line. I therefore do not dissent from that portion of the majority
opinion.
     The “did not apply” language of § 240.12(b) is also subject to interpretation. In a literal sense, an alien whose application for relief is pretermitted by the Immigration Judge has not applied for relief. However, that
is because he or she has not been allowed to apply. I agree with the majority that to say that an alien did not apply in such cases inaccurately
reflects what occurred at the hearing. See also Matter of You Fu Wang, 

 (BIA 1975). I therefore concur that, where an alien seeks
to apply for relief under § 240.11, a summary decision is not appropriate
unless it can be determined on the pleadings that the respondent is statutorily ineligible for relief. Where further fact-finding and analysis is
required to support a finding of statutory ineligibility, the Immigration
Judge should enter a decision which explains the alien’s ineligibility for
relief.
     In the case before us, I think it clear that the respondent wished to have
his removal to Laos withheld under the provisions of section 241(b)(3)(B)
of the Act, 

(b)(3)(B) (Supp. II 1996). The pleadings reflect
that his sentence for his aggravated felony conviction was for less than 5
years, which means that his conviction is not conclusively a particularly
serious crime under the withholding statute. Moreover, subsequent to the
Immigration Judge’s decision, we have clarified the standards under which
it should be determined whether such an aggravated felony is a particularly
serious crime that renders a respondent ineligible for withholding of
removal under section 241(b)(3)(B)(ii) of the Act as an alien who “having
been convicted of a particularly serious crime, is a danger to the community of the United States.” See Matter of S-S-, 

 (BIA 1999).
In this case, I agree that a summary decision was not appropriate, both
because the respondent did not concede removability and because the
Immigration Judge’s decision should have included the analysis under
which the respondent was found to be statutorily ineligible for withholding
of removal. With regard to this latter point, I would not find that the error
was harmless on the record presently before us. Accordingly, I would
remand the case for further proceedings with regard to the respondent’s eligibility for withholding of removal and for the entry of a new decision
thereafter.
     In my view, the decision of the majority could stop here. However, the
majority continues with a discussion of what a summary decision should
contain in those cases where the regulations would allow for its use. The
majority then addresses the appropriateness of looking to the transcript for
the Immigration Judge’s decision.



                                     481
Interim Decision #3375


             II. “CONTENT” OF A SUMMARY DECISION

     I respectfully dissent from Part V of the majority decision, which discusses what the content of a summary decision should be when a summary
decision is permitted under the provisions of § 240.12(b). The term “summary decision” and the Immigration Judges’ authority to issue such a decision are not new to the regulatory aftermath of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of 

 Stat. 3009-546 (“IIRIRA”). In fact, summary decisions
have a long history in deportation proceedings dating back at least to 1956.
See 

(b) (1956). See generally Matter of You Fu Wang,
supra. The most recently superseded regulation pertaining to summary
decisions, 

(b) (1997), which specifically referred to the
outdated Forms I-38 and I-39, had its origins in the regulations promulgated in 1956; and even the present regulation governing procedures in deportation proceedings, 

(b) (1998), references the use of
Forms EOIR-6 and EOIR-7. The content of these various form decisions is
not meaningfully different from that of the decision entered by the
Immigration Judge in this case. Thus, summary decisions historically have
been just that—concise, conclusory decisions similar in format and content
to the decision entered by the Immigration Judge here. The regulation that
we are interpreting today, § 240.12(b), does not specify the forms to be used
for issuing summary decisions in removal proceedings, but I find no basis
to conclude that a fundamentally different “summary decision” was contemplated from that which has been used for many decades.
     One can argue that the regulations should be revised to incorporate the
content requirements discussed by the majority in section V of their decision. However, looking to the recently redrafted regulations pertaining to
Immigration Judge’s decisions, I find nothing in the regulations themselves,
or in the published regulatory summary of the regulations, which either
expressly or implicitly adds new requirements for the content of summary
decisions. Since the present regulations neither mandate nor contemplate
that summary decisions contain information beyond that which has historically been included, I would not impose on the Immigration Judges the content requirement discussed in the majority opinion.
     What is most important, in my opinion, is that the record support the
accuracy and appropriateness of the conclusory statements made in the
summary decision. A summary decision should not state that an alien “did
not apply” for relief when he or she in fact sought to do so, but was precluded from applying, or when the Immigration Judge failed to advise the
alien of his or her apparent eligibility for relief. The error in such circumstances is not that the summary decision says too little, but that what it does
say does not fairly reflect what occurred during the proceedings. However,
in those cases where a summary decision is appropriately issued, for exam-

                                     482
                                                       Interim Decision #3375


ple, where the record confirms that the Immigration Judge properly advised
the alien of the forms of relief for which he or she appeared eligible, and the
alien stated that he or she did not want to apply for any relief, then I would
find no error under the existing regulations in the issuance of a summary
decision that says no more than the Immigration Judge’s decision in this
case. In my view, the regulations incorporate fundamental fairness principles by only allowing the use of a summary decision in narrow circumstances where a conclusory order, in the nature of those that have historically been issued, is sufficient.
     Accordingly, I dissent from Part V of the majority opinion.


            III. LOOKING TO THE TRANSCRIPT FOR THE
                  IMMIGRATION JUDGE’S DECISION

     Part VI of the majority opinion, which addresses the manner in which
an oral decision should be included in the record, is largely dicta in this
case. Although the Immigration and Naturalization Service argues that the
Immigration Judge issued an oral decision that is included in the transcript,
it seems clear to me that the Immigration Judge did not intend his discussion in the transcript as his decision. Rather, the Immigration Judge concluded that it was appropriate in this case to issue a summary decision,
which he then entered. Given the general high quality of this Immigration
Judge’s decision-making, I have little doubt that, had he not concluded that
a summary decision was appropriate, he would have issued a more formal
decision than the limited discussion found in this transcript.
     I am not entirely certain of what the majority is requiring in its discussion in Part VI. I note at the outset that I find that the general standard of
Immigration Judge decision-making is extremely high, despite the often
very demanding conditions under which those decisions are made.
However, I certainly concur with the majority to the extent that they are saying that an Immigration Judge’s oral decision should be entered “[a]t the
conclusion of the proceedings” and should be recognizable as such. See section 240(c)(1)(A) of the Act, 8 U.S.C. § 1229a(c)(1)(A) (Supp. II 1996). I
would also agree that having the Immigration Judge direct the transcriber to
prepare the oral decision in a separate, formally-captioned format is the preferred approach, which normally results in a more professional—at least in
appearance—decision, and one which can better serve the potential appellate process.
     That being said, however, I recognize that oral decisions are not always
entered in such a manner. Rather, at times, at the conclusion of the hearing,
Immigration Judges enter oral decisions, which are transcribed as part of
the entire transcript of the proceedings, without separate captioning. I find
no statutory or regulatory prohibition against this approach, nor do I find it

                                     483
Interim Decision #3375


inherently unfair, so long as the transcript reflects that an adequate oral
decision was, in fact, entered at the conclusion of the proceedings. I think it
is fair to state that this practice has a long history that has not resulted in
reversal of an Immigration Judge’s decision for reasons of form alone.
Thus, I do not concur in the majority’s seeming requirement that the oral
decision be “separate” from the transcript. Perhaps it is a matter of semantics, but I view oral decisions as inevitably a part of the “transcript of proceedings,” irrespective of whether they are readily amenable to separate
transcription in a formally-captioned document. I do not agree that the failure to follow the more formal approach necessarily implies “error” by the
Immigration Judge, and I would not remand cases simply for the preparation of a more formally formatted oral decision.
     What I do find problematic are those cases in which an Immigration
Judge signs a form which indicates that it is a “summary of the oral decision,” and which advises that if the case is appealed, the oral decision will
be transcribed and serve as the Immigration Judge’s decision in the case;
but, when the hearing is transcribed it does not reflect a cohesive or identifiable oral decision. Such cases are far from the norm, but they do occur. An
alien in proceedings as serious as those routinely presided over by
Immigration Judges is entitled to a “decision” that is recognizable as such.
And the statute and the regulations, as well as professionalism, common
sense, and simple fairness require more than a series of disjointed and/or
unsupported findings spread throughout the transcript that, in practical
effect, would require the alien or an appellate authority to construct an afterthe-fact “decision.”
     I finally note in this regard that I am principally concerned with the substance, rather than the format, of an Immigration Judge’s decision. If an
Immigration Judge enters a decision of the nature described in footnote 7 of
the majority opinion, that is, a comprehensive decision entered at the conclusion of the hearing, I would not find such a decision to be issued in a
manner that is contrary to the statute, the controlling regulations, or principles of fundamental fairness simply because it was not entered as a more
formal, separately captioned document. To the extent that the majority may
be holding otherwise, I dissent.


       IV. “HARMLESS ERROR” RULE SHOULD BE APPLIED

     As a final matter, I note that I do not understand the majority, in deciding to remand on the facts of this case, to have abandoned the principle of
“harmless error,” the principle that not all errors dictate a reversal or remand
in the absence of prejudice. See, e.g., Matter of Santos, 

(BIA 1984); Matter of Sibrun, 

 (BIA 1983), and cases
cited therein; cf. Matter of Charles, 

 (BIA 1977) (remand-

                                      484
                                                      Interim Decision #3375


ing a case that involved a myriad of procedural errors). In the circumstances
presented here, I am not satisfied that the Immigration Judge’s error in issuing a summary decision was harmless. Accordingly, I concur that remand is
appropriate. However, in cases where the error is simply one of form, with
no prejudice evident, I would not remand for the entry of a new decision.


                             V. CONCLUSION

     I concur that on the facts of this case the issuance of a summary decision was not appropriate, and that the record should be returned to the
Immigration Judge for further proceedings related to the respondent’s eligibility for withholding of removal, and for the issuance of an oral or written
decision under 

(a). I dissent from those portions of the
majority opinion that impose on Immigration Judges requirements for
which I find no support in the current regulatory scheme, and which I do not
find to be essential to fairness in these proceedings. Specifically, in the
absence of a change in the regulations, I would not require that Immigration
Judges expand the content of summary decisions beyond what they have
historically included, nor would I conclude that the law or regulations mandate that the oral decision must be separated from the transcript. Finally,
even in cases where it is determined that an Immigration Judge erred in the
manner in which a decision was issued, I would adhere to the principle of
“harmless error,” and ordinarily I would not remand unless it was evident
that the erroneous format of the decision prejudiced the alien in some meaningful way.




                                     485