Standard of Review of Fact-Finding Revised


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Standard of Review of Fact-Finding Revised

  1. 1. Standard of Review of Fact-Finding in the Decision Below By Joseph P. Whalen (Revised March 31, 2012)Q. How often do we encounter the following ubiquitous standardized blurb? Administrative findings-of-fact are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” INA § 242 (b)(4)(B) [8 U.S.C. § 1252(b)(4)(B)]A. A heck of a lot! After all, “ubiquitous” means: “Being or seeming to beeverywhere at the same time; omnipresent, or existing or being everywhere at thesame time; constantly”._________________________________________________________________ INA § 242 [8 U.S.C. § 1252] Judicial Review Of Orders Of Removal * * * * *(b) Requirements for Review of Orders of Removal.-With respect to review of anorder of removal under subsection (a)(1), the following requirements apply: * * * * * (4) Scope and standard for review.-Except as provided in paragraph (5)(B)- (A) the court of appeals shall decide the petition only on the administrative record on which the order of removal is based, (B) the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary, (C) a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law, and (D) the Attorney Generals1 discretionary judgment whether to grant relief under section 208(a) shall be conclusive unless manifestly contrary to the law and an abuse of discretion.1 In this instance, since an affirmative asylum claim denied by USCIS can be renewed before anIJ, or a defensive asylum claim can be lodged before an Immigration Judge in the first instance,and the denial of asylum is appealed to the BIA, it truly is a reference only to the A.G. whosedecision through delegated authority is being challenged in the Petition for Review. Page 1 of 7
  2. 2. No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 208(b)(1)(B), 240(c)(4)(B), or 241(b)(3)(C), unless the court finds, pursuant to section 242(b)(4)(B), that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable. (5) Treatment of nationality claims.- (A) Court determination if no issue of fact.-If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioners nationality is presented, the court shall decide the nationality claim. (B) Transfer if issue of fact.-If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioners nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of title 28, United States Code. (C) Limitation on determination.-The petitioner may have such nationality claim decided only as provided in this paragraph.The above principle applies specifically to judicial review of an agency decision.However, it is usually also true for the administrative appellate review from aninitial agency decision especially when the initial decision involved face-to-faceinterviews and/or hearings. Certain types of initial or preliminary proceedings donot involve any face-to-face interactions and thus neither do agency reviews ofdecisions below; or conversely, the agency review may entail personal interactionand in either case, may be amenable to full de novo review thus need not defer tounderlying fact-finding. The trier-of-fact or fact-finder is usually in a betterposition to determine the facts of the case due to the ability to take testimony, askquestions, and clarify issues. The trier-of-fact can also observe demeanor of awitness and can judge credibility, in part, based on demeanor that is lost in a paper-based review. The various players in these dramas have specific roles to play and Page 2 of 7
  3. 3. when they act outside their roles, the decisions cannot stand. Unless suchprocedural errors can be deemed harmless, remand is the usual result.An unpublished case on point from the Ninth Circuit Court of Appeals2 stated: “The immigration judge (IJ) pretermitted Baca’s application for cancellation of removal on the ground that he had committed a crime involving moral turpitude, which rendered him ineligible for cancellation under 8 U.S.C. § 1229b(b)(1)(C). The IJ did not consider or determine whether Baca was ineligible for cancellation of removal on any other ground. Baca appealed to the Board of Immigration Appeals (BIA), and both his briefing and the government’s concerned only whether his crime was one involving moral turpitude.FN1 The BIA nevertheless affirmed the IJ’s decision to pretermit cancellation of removal on the ground that Baca lacked a qualifying relative, as required by 8 U.S.C. § 1229b(b)(1)(D).FN2 But the IJ had taken no evidence on whether Baca had a qualifying relative, and the BIA is not permitted to engage in such fact-finding.FN3 8 C.F.R. § 1003.1(d)(3)(iv); see Brezilien v. Holder, 569 F.3d 403, 412 n.3 (9th Cir. 2009). The BIA’s sua sponte decision to resolve the appeal on this basis was therefore beyond its authority.”Footnotes in original: FN1 Baca was convicted of trademark counterfeiting, Or. Rev. Stat. § 647.145, for posting online an advertisement for an “Imitation Rolex.” He was sentenced to one night in jail and $237 in fines. FN2 The BIA’s initial decision held in the alternative that Baca was ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(B), because he had admitted the commission of a crime involving moral turpitude. See 8 U.S.C. § 1101(f)(3) (providing that any “member of . . . the class[] of persons” described by 8 U.S.C. § 1182(a)(2)(A) cannot be regarded as having good moral character). As the government concedes, however, the BIA abandoned this rationale in denying Baca’s motion to reopen. See Gov’t Br. at 30 n.15 (“Given the Board’s disposition of Baca’s motion, the agency determination, as it now stands, is that Baca is ineligible for cancellation of removal only because he does not have a qualifying relative.”). We therefore need not2 This disposition is not appropriate for publication and is not precedent except as provided by9th Cir. R. 36-3. Baca v. Holder, No. 09-71702 (9th Cir 12/08/2011) Page 3 of 7
  4. 4. consider whether this rationale would support the holding that Baca is ineligible for cancellation of removal. If we were to consider it, however, we would have serious doubt that it could sustain the BIA’s determination. Baca’s guilty plea was not an “admission” but simply a route to arriving at a “conviction.” See Dillingham v. INS, 267 F.3d 996, 1003-04 (9th Cir. 2001), overruled on other grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011). While Baca admits having advertised an imitation Rolex for sale, he denies having “know[n] that Rolex was a registered trademark” or having “made a false statement in order to gain something of value.” FN3 We consider this argument notwithstanding that Baca did not raise it in his opening brief. See Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004).The BIA revisited an earlier decision after a remand by the Seventh Circuit. Theactual outcome for this alien respondent is still uncertain based on the specifics ofthe case, which the Board determined was necessary to remand for furtherproceedings. I was drawn to three parts of the discussion which I have cut-and-pasted below. I added the bold and underlining for emphasis. The first excerptreminds the reader of a basic truth that far too many too often forget. The secondexcerpt, discussing the appropriate roles and functions especially as they differbetween the Immigration Judges and the Board, is instructive and is includedsolely for that reason. The third excerpt addresses the differing responsibilities vs.privileges of the parties to an appeal in immigration proceedings. The first andthird excerpts also have some potentially useful citations for further exploration.Matter of LEMUS, 25 I&N Dec. 734 (BIA 2012)3 includes a few points of interest: “.... As in any other case of statutory interpretation, the touchstone of our analysis is the plain language of the statute. Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (citing Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999)). It is presumed that Congress “says in a statute what it means and means in a statute what it says there.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)) (internal quotation marks omitted). Thus, we cannot deviate from the unambiguous meaning of statutory language, except in those rare circumstances where strict adherence to the text would lead to an absurd or bizarre result that is “demonstrably at odds with the intentions of its drafters.” Demarest v.3 See: Page 4 of 7
  5. 5. Manspeaker, 498 U.S. at 190 (quoting Griffin v. Oceanic Contractors, Inc.,458 U.S. 564, 571 (1982)) (internal quotation marks omitted).” At p. 741 * * * * *“.... a question naturally arises as to whether the passage of time has vitiatedthe respondent’s inadmissibility under section 212(a)(9)(B)(i)(II). Webelieve that respectable arguments can be advanced to support either side ofthis question, and we are not inclined to leave such a potentially importantissue unaddressed. Accordingly, we deem it advisable to remand the recordfor further examination by the Immigration Judge, who (unlike thisBoard) is empowered to receive relevant evidence and to enter whateverfindings of fact might be necessary to resolve the issue.The second reason for remanding is to allow the Immigration Judge toconsider in the first instance whether the facts support the DHS’s recentargument regarding the respondent’s inadmissibility....” At p. 745 * * * * *“The respondent maintains that the DHS has waived the right to invoke hisalleged inadmissibility under section 212(a)(9)(C)(i)(I) by failing to raise theissue sooner. But the waiver principles invoked by the respondent haveno place where, as here, the sole issue in dispute—namely, therespondent’s eligibility for section 245(i) adjustment—is a matter withrespect to which he bears the exclusive burden of proof. Section240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A) (2006). The respondentcannot meet his burden of proving that he is affirmatively “admissible . .. for permanent residence,” as required by section 245(i)(2)(A), simply byarguing that the DHS neglected to point out his alleged inadmissibilitysooner. In this regard, we observe that judicial rules pertaining to thewaiver of arguments by appellants are not controlling here because theDHS was the prevailing party below and the appellee before this Board andthe Seventh Circuit. See Transamerica Ins. Co. v. South, 125 F.3d 392, 399(7th Cir. 1997) (“We certainly agree that the failure of an appellee to haveraised all possible alternative grounds for affirming the district court’soriginal decision, unlike an appellant’s failure to raise all possiblegrounds for reversal, should not operate as a waiver. The urging ofalternative grounds for affirmance is a privilege rather than a duty.”(quoting Schering Corp. v. Illinois Antibiotics Co., 89 F.3d 357, 358 (7thCir. 1996) (internal quotation marks omitted))).7 Because the DHS was notobliged to raise the respondent’s alleged inadmissibility under section212(a)(9)(C)(i)(I) in the first round of these proceedings, we will allow itto do so on remand.” At p. 746 Page 5 of 7
  6. 6. I think these concepts and the things that might be found through exploration of thevarious cases cited could come in handy. We all need to keep reading andsearching.As noted above, the BIA is usually limited in its review of certain findings of factin the proceeding below. The agency had set its review standards initially viaprecedents. Later, the BIA promulgated regulations on this and other related topics(excerpt follows). Certain decisions made by Legacy INS (now DHS) were alwayssubject to de novo review and continue to be. USCIS’ administrative appellatebody, the Administrative Appeals Office (AAO), is supposed to publish its ownrule soon and codify certain procedures. AAO has always retained the right tosubject everything to full de novo review whether it needed it or not. We shallhave to wait and see what they come up with.8 CFR 1003.1 Organization, jurisdiction, and powers of the Board ofImmigration Appeals. * * * * *(d) Powers of the Board * * * * * (3) Scope of review. (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 Page 6 of 7
  7. 7. factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service.On January 20, 2012, DHS published its required regulatory agenda whichincludes:RIN: 1615-AB98 “Administrative Appeals Office: Procedural Reforms ToImprove Efficiency”More information on the progress of this effort may be found at the links shownbelow. It is noted that the agenda called for the NPRM (Notice of ProposedRulemaking) was expected in March 2012, but that deadline has been missed!Regulatory Plan - Fall 2011Document ID: DHS-2012-0005-0002Document Type: OtherDocket ID: DHS-2012-0005!documentDetail;D=DHS-2012-0005-0002Semiannual Regulatory Agenda - Fall 2011Document ID: DHS-2012-0005-0001Document Type: OtherDocket ID: DHS-2012-0005!documentDetail;D=DHS-2012-0005-0001 Page 7 of 7