Matter of A-S-B-, Respondent
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided May 8, 2008
24 I&N Dec. 493 (BIA 2008)
Interim Decision #3608
(2) In determining whether established facts are sufficient to meet a legal standard, such as “well-founded fear,” the Board has the authority to weigh the evidence in a manner different from that accorded by the Immigration Judge, or to conclude that the foundation for the Immigration Judge‘s legal conclusions was insufficient or otherwise not supported by the evidence of record.
FOR RESPONDENT: Christopher J. Stender, Esquire, San Francisco, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Deborah K. Goodwin, Assistant Chief Counsel
BEFORE: Board Panel: OSUNA, Acting Chairman; HOLMES and GRANT, Board Members.
OSUNA, Acting Chairman:
In an order dated October 16, 2007, the United States Court of Appeals for the Ninth Circuit granted the Government‘s unopposed motion to remand the respondent‘s case to the Board. Upon review of our prior decisions pursuant to the court‘s order, we will again dismiss the respondent‘s appeal.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala who illegally entered the United Statеs in 1990. On December 12, 2003, an Immigration Judge found him removable as charged and granted him asylum. The decision fully discusses the respondent‘s claim, which we briefly summarize here. In 1989, the respondent worked as a gas station attendant in Guatemala. One day, two truckloads of guerrillas approached him at work and demanded free gas under
The Immigration Judge found that the respondent did not establish past persecution, or a well-founded fear of persecution, related to the guerrillas or like forces. He did conclude, however, that the respondent would likely be singled out for persecution by the military in Guatemala because the authorities would question him upon his return, discover the 1989 incident, and mistreat him as a result. The Immigration Judge considered evidencе in the record from the Department of State indicating that Guatemalan security forces engaged in serious human rights abuses. The Department of Homeland Security (“DHS“) filed an appeal, emphasizing the lack of objective evidence in the record to support the Immigration Judge‘s grant of asylum.
In a decision dated Novembеr 19, 2004, we agreed with the Immigration Judge that the respondent did not experience past persecution on account of any protected ground. We did not, however, concur that the respondent established a reasonable possibility that he would face persecution from the military upon return to Guatemala. Rathеr, we agreed with the DHS that the Immigration Judge‘s conclusion that the authorities would discover the 1989 incident and single the respondent out for persecution on this basis was purely speculative. We also considered the evidence of record that the Guatemalan civil war ended in 1996, and that the politically motivated violencе feared by the respondent had abated. We pointed out that the respondent had not provided countervailing evidence to show that his fear remained reasonable despite these conditions. The record was remanded for the Immigration Judge to address the respondent‘s request for withholding of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) (“CAT“). See
On remand, the Immigration Judge, without objection from the parties, considered the facts established at the prior hearing, as well as updated evidence of country conditions рrovided by the DHS. In a decision dated October 6, 2005, he concluded that the respondent did not meet his burden of proof under the CAT that it was more likely than not that he would be tortured upon return to Guatemala and granted him voluntary departure. The
We dismissed the appeal in a decision dated October 5, 2006, explaining that we had utilized the correct standard of review in our prior decision beсause we concluded, as a matter of law, that the facts of the respondent‘s case did not establish a well-founded fear of persecution within the meaning of the Immigration and Nationality Act. Insofar as the respondent contended that he did not have an adequate opportunity to rebut the evidence of country сonditions referred to in our decision, we responded that the pertinent evidence, namely reports issued by the State Department, had been in the record at the time of his hearing.1
The respondent filed a petition for review with the Court of Appeals for the Ninth Circuit. On October 16, 2007, the court, without any specific directives, grantеd the Government‘s unopposed motion to remand, which requested a remand to
allow the Board to provide clarification and elaboration on the scope of review it employed (in its November 19, 2004 decision reversing the immigration judge‘s grant of asylum) to review the question of whether [the respondent] demonstrated a well-founded fear of persecution in Guatemala. Specifically, remand will allow the Board an opportunity to clarify and elaborate on its characterization (in its October 5, 2006 decision) of the ultimate “well-founded fear” issue as presenting a question of law warranting a de novo standard of review pursuant to
8 C.F.R. § 1003.1(d)(3)(ii) (2007).
II. STANDARD AND SCOPE OF REVIEW
In 2002, the Attorney General issued a procedural reforms regulation, which, in part, related to the standard of review applied by the Board and the scope of its review of decisions by the Immigration Judges. See Board of Immigration Appeals: Procedural Reforms To Improve Case Management,
(i) The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.
(ii) The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.
(iii) The Board may review all questions arising in appeals from decisions issued by Service officers de novo.
(iv) Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand. If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service.
67 Fed. Reg. at 54,902 (codified at
The Supplementary Information to this regulation contained an extensive discussion about the interplay of the clearly erroneous standard of review and the Board‘s de novo review authority.3 It explained that the Board should defer to the factual findings of an Immigration Judge, unless they are clearly erroneous, but that it retains independent judgment and discretion, subject to applicable governing standards, regarding purе questions of law and the application of a particular standard of law to those facts. 67 Fed. Reg. at 54,888-89 (Supplementary Information). The clearly erroneous standard therefore does not apply to the application of legal standards, such as whether the facts established by an alien “amount to ‘past рersecution’ or a ‘well-founded fear of persecution.‘” Id. at 54,890. This analytical approach to deciding cases recognizes that the Immigration Judges are better positioned to discern credibility and assess the facts with witnesses before them, but that the Board is better positioned to resolve issues involving the application of legal standards and the exercise of discretion. Id.
The Attorney General provided specific examples to show how the standard of review should be applied. For example, the Immigration Judge‘s
III. APPLICATION OF THE REGULATIONS
In this case, the Immigration Judge found in his December 12, 2003, decision that the respondent presented credible testimony. We did not find this determination to be “clearly erroneous.” The prеdicate facts presented by the respondent, namely what happened to him when he was in Guatemala, were the basis for our decision when we evaluated the respondent‘s case on appeal. The question whether these uncontested facts were sufficient to establish a well-founded fear of perseсution, however, was a legal determination that was not subject to the clearly erroneous standard of review. This mode of evaluation is in accord with the standard for review set out in
In determining whether established facts are sufficient to meet a legal standard, such as “well-founded fear,” the Board is entitled to weigh the evidence in a manner different from that accorded by the Immigration Judge, or to conclude that the foundation for the Immigration Judge‘s legal conclusions was insufficient or otherwise not supported by the evidence of record. In this vein, we found in our November 19, 2004, decision that the
We further find that neither of our prior decisions in this case violated the prohibition against fact-finding on appeal, as set out in
In conclusion, for the reasons stated in our prior decisions in this case, we find that the respondent did not establish as a matter of law that he should be granted asylum or withholding of removal under either the Act or the CAT. Accordingly, upon clarification of our рrior decisions, the respondent‘s appeal will again be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge‘s order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the alien is permitted to voluntarily depart from the United States, without expense to the Government, within 60 days from the date of this order or any еxtension beyond that time as may be granted by the Department of Homeland Security (DHS). See section 240B(b) of the Immigration and Nationality Act;
NOTICE: If the alien fails to depart the United States within the time period specified, or any extensions granted by the DHS, the alien shall be subject to a civil penalty of not less than $1,000 and not more than $5,000, and shall be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Immigration and Nationality Act. See section 240B(d) of the Act.