Exploiting Unforced Errors

1
Exploiting Unforced Errors

• The BIA orders remands in many cases because
• The IJ failed issue a separate decision
• The decision does not enable meaningful appellate
  review
• If beneficial to your client, argue that a remand
  is required for issuance of a decision or a more
  complete decision
• Matter of Fedorenko, 19 IN Dec. 57, 74 (BIA
  1984) (The Board is an appellate body whose
  function is to review, not to create, a record.)

2
Exploiting Unforced Errors (cont.)

• IJs are required to issue a separate decision,
  either oral or written. 8 C.F.R. 1240.12(a).
• Scattered findings of fact and conclusions of
  law in transcript are not sufficient. Matter of
  A-P-, 22 IN Dec. 468, 476 (BIA 1999).
• Summary decisions only permitted if respondent
  concedes removability and cannot/does not apply
  for relief. 8 C.F.R. 1240.12(b).
• But see Matter of Rodriguez-Carrillo, 22 IN Dec.
  1031 (BIA 1999) (remand not always required)

3
Exploiting Unforced Errors (cont.)

• Why would a decision not be sufficient for
  appellate review?
• Decisions must contain clear and complete
  findings of fact that are supported by the record
  and are in compliance with controlling law.
  Matter of S-H-, 23 IN Dec. 462, 465 (BIA 2002)
• Decisions must reflect the Immigration Judges
  analysis of the applicable statutes, regulations,
  and legal precedents, and clearly set forth the
  Immigration Judges legal conclusions.
  Matter of A-P-, 22 IN Dec. 468, 476
  (BIA 1999)

4
Exploiting Unforced Errors (cont.)

• IJs cannot deny a motion to reopen for the
  reasons stated in the DHS brief.
• When a motion to reopen is denied and the
  reasons for such denial are either unidentified
  or not fully explained, an alien is deprived of a
  fair opportunity to contest that determination on
  appeal. Similarly, this Board is unable to
  meaningfully fulfill its responsibility of
  reviewing the immigration judges denial of the
  motion in light of the arguments advanced on
  appeal. Matter of M-P-, 20 IN Dec. 786, 787-88
  (BIA 1994).

5
BIA Standards of Review

• Factual findings, including credibility
  determinations, are reviewed for clear error. 8
  C.F.R. 1003.1(d)(3)(i).  
• The reviewing Board member or panel is left with
  the definite and firm conviction that a mistake
  has been committed. Matter of R-S-H-, 23 IN
  Dec. 629, 637 (BIA 2003).
• Questions of law, discretion, judgment and all
  other issues are reviewed de novo. 8 C.F.R.
  1003.1(d)(3)(ii).
• Chevron deference does not apply

6
BIA Standards of Review (cont.)

• What is a factual determination?
• What happened in the past or is currently
  happening
• Whether a respondent was waved through a port
  of entry by an immigration officer
• Why a persecutor targeted an asylum applicant
  (i.e. the persecutors motive)
• Whether the respondent knowingly and deliberately
  fabricated elements of an asylum claim
• What may happen in the future
• Split between BIA and federal courts

7
BIA Standards of Review (cont.)

• What is a question of law?
• Pure question of law
• Whether the aggravated felony bar in INA 212(h)
  applies to all lawful permanent residents, or
  only to those who were admitted in LPR status at
  a port of entry.
• Mixed question of law and fact (of judgment)
• Whether a respondents qualifying relative(s)
  would suffer exceptional and extremely unusual
  hardship
• Whether mistreatment rises to the level of
  persecution

8
BIA Standards of Review (cont.)

• What is a question of discretion?
• Whether a respondent merits a grant of adjustment
  of status, cancellation of removal, or voluntary
  departure.
• Whether to grant a motion to change venue.
• Whether to grant a motion to continue.
• Subject to de novo review, not abuse of
  discretion
• However, underlying factual determinations still
  subject to clear error review. Matter of
  Pinzon, 26 IN Dec. 189, 190 (BIA 2013).

9
BIA Standards of Review (cont.)

• Likelihood of a future eventquestion of fact or
  law?
• BIA question of law
• It is impossible to declare as fact things
  that have not yet occurred. Matter of A-S-B-, 24
  IN Dec. 493, 498 (BIA 2008).
• Circuits what would happen is a question of
  fact whether those facts entitle respondent to
  relief is a question of law
• Kaplun v. Atty Gen., 602 F.3d 260 (3d Cir. 2010)
• Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012)

10
BIA Standards of Review (cont.)

• Hypothetical IJ denies EOIR-42B because
• Respondents conviction for Maryland second
  degree assault is a CIMT
• Respondents U.S. citizen wife would not suffer
  exceptional and extremely unusual hardship
• Respondent does not merit a favorable exercise of
  discretion
• What standard(s) of review apply to each issue?

11
BIA Standards of Review (cont.)

• Hypothetical IJ denies EOIR-42B because
• Respondents conviction for Maryland second
  degree assault is a CIMT ? Question of law (de
  novo)
• Respondents U.S. citizen wife would not suffer
  exceptional and extremely unusual hardship
  
• What would happen to wife ? Question of fact
  (clear error)
• Whether what would happen amounts to
  exceptional/extremely unusual hardship ? Mixed
  question of law and fact (de novo)
• Respondent does not merit a favorable exercise of
  discretion
• Underlying factual determinations ? Question of
  fact (clear error)
• Ultimate discretionary determinations ? Question
  of discretion (de novo)

12
BIA Standards of Review (cont.)

• What should you do if it is unclear which
  standard of review to apply?
• If the IJ ruled in your favor, frame the findings
  as factual. If the IJ ruled against you, frame
  the findings as legal or discretionary.
• Ask are Immigration Judges better positioned to
  make this determination than Board members? If
  so, the determination can more persuasively be
  framed as factual

13
Unpublished BIA Decisions

• Persuasive but not binding on the Board or
  Immigration Judges
• Not entitled to Chevron deference. Martinez v.
  Holder, 740 F.3d 902, 909-10 (4th Cir. 2014).
• If the BIA issues an unpublished decision that
  contradicts a prior unpublished decision, it must
  explain the basis for the deviation.
• Courts typically look askance at an agencys
  unexplained deviation from a prior decision, even
  when the prior decision is unpublished.
  Perez-Vargas v. Gonzales, 479 F.3d 191, 193 n.3
  (4th Cir. 2007).

14
Unpublished BIA Decisions (cont.)

• Jose Armando Cruz, A087 241 021 (BIA Apr. 9,
  2014) (unlawful presence bars do not apply after
  3/10-year period, even if respondent illegally
  re-entered the country prior to expiration). AILA
  Doc. No. 14070851.
• B-J-G-, AXXX XXX 333 (BIA May 29, 2014) (verbal
  and psychological abuse can constitute extreme
  cruelty under VAWA). AILA Doc. No. 14080544.
• M-G-O-, AXXX XXX 611 (BIA Feb. 4, 2014)
  (effeminate gay males from Mexico with female
  gender identity is PSG). AILA Doc. No. 14032146.
• David Antonio Lara-Torres, A094 218 294 (BIA Jan.
  28, 2014) (upholds motion to suppress due to
  prolonged traffic stop where non-Latino drivers
  were not stopped for similar violations). AILA
  Doc. No. 14031946.  
• Ramon Garcia-Fonseca, A075 535 094 (BIA June 5,
  2014) (guilty plea resulting in less than
  conviction not an admission of the crime).
  AILA Doc. No. 14082241
• For more unpublished decisions, visit
  www.irac.net/unpublished