After five years of ups and downs, Attorney Maria Baldini-Potermin wrangled a smashingly-great asylum decision from the Seventh Circuit - a decision that has implications reaching far beyond her gay, HIV positive Mexican client's individual case. Rosiles-Camarena v. Holder, No. 11-3086 (7th Cir. August 21, 2013). The crux of the case involves the appropriate standard of review allocated to the Board of Immigration Appeals by the regulations promulgated and adopted during the George W. Bush administration when John Ashcroft headed up the Department of Justice and served as Attorney General (aka, during the "streamlining" period when the BIA's appeal backlog was at an all-time high).

Trust me, it's more interesting and impactful than it sounds.

It's important to recall that the climate in which the "streamlining" regulations were devised and promulgated was one in which the BIA's 3 member deliberative panel decisions were disfavored, separate opinions (particularly lengthy ones) were disfavored, BIA precedent opinions were disfavored, and close scrutiny of IJ decisions, particularly credibility decisions, was disfavored. After Ashcroft and his successor Attorneys General departed, and the dust settled, the Board was left with the job of interpreting these regulations, which unquestionably constricted it's role, in the context of real life cases and decisions.

In Matter of V– K–,24 I&N Dec. 500 (BIA 2008), the BIA attempted to create a rationale for viewing (and reviewing) determinations based on factual circumstances in asylum claims as mixed questions of fact and law, permitting the BIA to exercise de novo review authority when an IJ's decision was appealed by either the respondent or the government. The BIA ruled that an Immigration Judge’s prediction or finding regarding the likelihood that an alien will be tortured relates to whether the ultimate statutory requirement for establishing eligibility for relief from removal has been met and is therefore a mixed question of law and fact, or a question of judgment. Id. at 501-502. The BIA relied on the regulation providing that the Board “may review questions of law, discretion and judgment and all other issues in appeals from decisions of immigration judges de novo.” Id. at 501 (citing 8 C.F.R. §§ 1003.1(d)(3)(i)-(ii)).

Ultimately, the Board's decision in Matter of V-K- rested on the observation that "it would appear essential to the performance of our appellate function as contemplated by the Attorney General that we possess the authority to review de novo findings deemed by an Immigration Judge to satisfy an ultimate statutory standard. Id. at 502. In other words, if the likelihood or possibility of something happening is left virtually unreviewable except for clear error, the function and role of the Board is diminished.

Back at the Seventh Circuit, however, Judge Easterbrook understood what was going on. He elaborated that the "Board has interpreted §1003.1(d)(3)(i) in a way that it believes makes clauses (i) and (ii) harmonious by relying on the longstanding distinctions between adjudicative and legislative facts, and between historical (case-‐‑specific) facts and those aspects of discretion or judgment that concern country-wide conditions—subjects on which the Board thinks that the United States should be able to speak with one voice, rather than through a cacophony of immigration judges." Rosiles-Camarena, supra. at 7.

To be sure, and why not? Uniformity and consistency were previously highly regarded values at the Board.

To quote Judge Easterbrook: "The problem is that the Board’s arguments would be better as reasons to revise the regulation than as reasons to interpret it differently from the similar language that governs relations between federal trial and appellate courts." In ruling that the BIA exceeded its review authority by imposing a denovo review standard upon facts, the Seventh Circuit now has joined 5 other circuits. [1]

Judge Easterbrook smoothly disposed of the Board's concern that it's function and role would be usurped if it were deprived of de novo review over the IJ's finding in a case such as Rosilies-Camerena byoffering an interesting perspective: "Perhaps the Board’s view that it may make independent decisions about predictions is a consequence of giving itself too little leeway to find IJs’ predictions clearly erroneous." Id. at 9. Judge Easterbrook noted in particular that the Board had raised concerns about whether evidence that there was no more than a 1-in-100,000 chance that any given gay man would be killed any given year meets a more--likely--than--not burden of persuasion.

So - whereas the Board might justifiably find clear error in an unwarranted or unsupportable factual finding made by an IJ, the Board instead substituted it’s judgment and made the finding itself – exercising a denovo review authority that it had it lost under the Ashcroft regulations.

I must say the Board appears to have been hoisted on its own petard - or on the petard Ashcroft created while he was at DOJ. In fact, at the time these regulations were promulgated in 2002, Ashcroft's intent was to strip the BIA of much of its de novo review authority. To my recollection, he viewed the BIA as his personal mouthpiece and felt it should function only to express his views. Now, these rules are coming back to confound the BIA's decisions.

The Supplementary Information accompanying the final rule is replete with assertions and quotations underscoring this outlook, such as: “[T]he Board acts on the Attorney General's behalf rather than as an independent body. The relationship between the Board and the Attorney General thus is analogous to an employee and his superior rather than to the relationship between an administrative agency and a reviewing court.” Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 Fed. Reg. 54,878 (Aug. 26, 2002) (Procedural Reforms) (quoting Matter of Hernandez-Casillas, 20 I&N Dec. 262, 289 n.9 (BIA 1990, A.G. 1991).

And there’s more. The regulatory history reflects a clearly expressed intent that the final rule "continues to focus on the primacy of immigration judges as factfinders and determiners of the cases before them." See Procedural Reforms, supra. (emphasis added). In contrast, "[t]he role of the Board is to identify clear errors of fact or errors of law in decisions under review . . . not to serve as a second-tier trier of fact." Id. Moreover, the Supplementary Information emphasizes that as an administrative body within the Department, the Board is subject to the Attorney General's direction to the extent that the Attorney General could dispense with Board review entirely. Id. Certainly not a resounding endorsement of the Board’s potential role.

Judge Easterbrook hit the nail on the head in stating that the BIA has failed to use the authority it does possess to find clear error. Rosiles-Camerena, supra. at 9 (“Instead [the BIA] . . . claimed a right to substitute its judgment for that of the IJ without finding a clear error”) (emphasis in original). The reasons for the Board’s propensity to engage in denovo review rather than to make clear error determinations -- above and beyond the Board’s desire to retain as much of its review authority as possible -- are worthy of consideration.

Since the regulations prohibit the Board from making factual findings, one apparent consequence of the Board’s ruling that an IJ’s factual or predictive finding is clearly erroneous is the necessity of remand to the IJ, increasing the already clogged and backed-up dockets in the immigration courts. Another consequence is a decrease in final orders of removal. Neither of these outcomes is desirable administratively and certainly won’t be popular with DOJ or Congress, not to mention the individual IJs whose cases are remanded to them – but that is what these regulations seem to require.

And clear error rulings cut both ways. Assuming the Board accepts this invitation to recognize and rule on clear error more frequently, we may see more decisions reversed on that basis and the focus of review may turn to whether that standard is properly defined, invoked and applied. Hopefully, in the instant case, the BIA will use the remand from the Seventh Circuit as an opportunity to determine that relief is appropriate based on an aggregate of the evidence in the record demonstrating the probability of harm, and will not focus narrowly or exclusively on the one source that triggered it’s concern: that a 1‑in-100,000 chance of death cannot meet a more-likely-than-not burden of persuasion.

[1] In En Hui Huang v. Attorney General, 620 F.3d 372, 381–87 (3d Cir. 2010), the Third Circuit it applied its holding in Kaplun v. Attorney General, 602 F.3d 260, 269–71 (3dCir. 2010) (CAT) rejecting the Board’s decision in Matter of V-K- to applications for withholding of removal. Four other circuits have agreed. See Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012); Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012); Zhou Hua Zhu v. Attorney General, 703 F.3d 1303 (11th Cir. 2013). The First Circuit , in contrast, has accepted the rule articulated in Matter of V-K-. See Sicaju-Diaz v. Holder, 663 F.3d 1, 5 (1st Cir. 2011).