James Turkson v. Eric Holder, Jr.
2012 U.S. App. LEXIS 1429
| 4th Cir. | 2012Background
- Turkson, a Ghanaian national, sought deferral of removal under CAT after fearing torture upon return.
- An IJ found Turkson credible and likely to be tortured in Ghana, based on past abuse and current conditions, and granted deferral.
- DHS appealed; the BIA reviewed de novo and reversed, vacating the IJ’s deferral and removing Turkson to Ghana.
- Regulatory framework requires two-step review: factual findings are reviewed for clear error; legal questions are reviewed de novo.
- Turkson challenges the BIA’s use of de novo review for the IJ’s factual findings and seeks remand under the proper standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for IJ findings | Turkson argues factual findings must be reviewed for clear error. | DHS contends de novo review is allowed for all parts of the IJ decision. | BIA must review factual findings for clear error. |
| Whether likelihood of future mistreatment is a factual finding | Turkson contends future-prediction findings are factual and deferentially reviewed. | DHS treats some future-prediction determinations as de novo legal judgments. | Likelihood of future mistreatment is a factual finding, reviewable for clear error. |
| Scope of BIA review under 8 C.F.R. § 1003.1 | BIA erred by applying de novo review to IJ’s facts contrary to regulation and Kaplun. | BIA may conduct de novo review on legal questions and judgments. | BIA erred; apply clearly erroneous standard to IJ factual findings and de novo to legal questions. |
Key Cases Cited
- Kaplun v. Attorney General, 602 F.3d 260 (3d Cir. 2010) (separates factual likelihood from legal application; factual is clearly erroneous; legal is de novo)
- Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (BIA must not substitute its own factual findings for IJ’s)
- Lin v. Mukasey, 517 F.3d 685 (4th Cir. 2008) (discusses BIA fact-finding limits under § 1003.1)
- Massis v. Mukasey, 549 F.3d 631 (4th Cir. 2008) (BIA reviews application of law to facts; not required to reweigh facts)
- Hui Zheng v. Holder, 562 F.3d 647 (4th Cir. 2009) (de novo review of legal determinations with Chevron deference)
- Auer v. Robbins, 519 U.S. 452 (1997) (agency interpretations of their own regulations controlling unless plainly erroneous)