In re S---- H----

• Decision Date: 12 September 2002
• Docket Number: Interim Decision Number 3478
• Citation: 23 I&N Dec. 462
• Parties: In re S---- H----, et al., Respondents
• Court: U.S. DOJ Board of Immigration Appeals

23 I&N Dec. 462

In re S---- H----, et al., Respondents

Interim Decision Number 3478

Board of Immigration Appeals

Decided September 12, 2002

Under new regulations that become effective on September 25, 2002, the Board of Immigration Appeals has limited fact-finding ability on appeal, which heightens the need for Immigration Judges to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law. Matter of Vilanova-Gonzalez, 13 I&N Dec. 399 (BIA 1969), and Matter of Becerra-Miranda, 12 I&N Dec. 358 (BIA 1967), superseded.

FOR RESPONDENT: Stanley A. Cohen, Esquire, New York, New York

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Wen-Ting Cheng, Assistant District Counsel

BEFORE: Board Panel: HOLMES, HURWITZ, and MILLER, Board Members.

HOLMES, Board Member:

In this case, an Immigration Judge found the adult respondents deportable and granted their applications for asylum under section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a) (Supp. V 1999).¹ The Immigration and Naturalization Service has appealed from the Immigration Judge's decision. The appeal will be sustained, and the record will be remanded for further proceedings. This decision will also briefly discuss changes to the Board's authority to review an Immigration Judge's findings of fact pursuant to new regulations that will become effective on September 25, 2002. See Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 Fed. Reg. 54,878, 54,902 (2002) (to be codified at 8 C.F.R. § 3.1(d)(3)).

I. APPEAL

The respondents are natives and citizens of Iraq who conceded their deportability before an Immigration Judge. The Immigration Judge granted the adult respondents' applications for asylum. The Immigration Judge's decision consists of a very brief summary of some of the testimony presented at the hearing, a reference to his concern regarding two clauses in a Department of State country report on Iraq, and his conclusion that the respondents "on balance . . . have demonstrated a well-founded fear and a clear probability of persecution should they return to Iraq." The Immigration Judge did not make any specific findings of fact, did not include any explicit credibility determinations, and did not meaningfully discuss the documents that had been offered into evidence. It is possible that the Immigration Judge was under the mistaken impression that the Service did not object to a grant of relief to the respondents. However, the Service had made clear at the conclusion of the final hearing that it did affirmatively contest the respondents' eligibility for asylum.

On appeal, the Service objects to the Immigration Judge's grant of asylum and raises various issues regarding the respondents' eligibility for this form of relief. The Service also asserts that the Immigration Judge's decision does not adequately set forth the reasons underlying his grant of relief. The Service requests that the Board conduct an independent review of the record, find that the respondents did not meet their burden of proof for asylum, and reverse the decision of the Immigration Judge.

We agree with the Service that the Immigration Judge's decision before us is inadequate. The decision does little more than briefly summarize some of the testimony and then, without further findings or analysis, state that the respondents are eligible for, and deserving of, relief. As pointed out by the Service, one option presently available to us in this situation is to conduct an independent evaluation of the evidence of record, make appropriate findings of fact, and adjudicate the asylum claim on appeal on that basis. See, e.g., Matter of Vilanova-Gonzalez, 13 I&N Dec. 399, 402 (BIA 1969) (stating that the Board has authority to engage in de novo review of the record and, based on such a review, make its own independent findings on questions of fact and law, irrespective of those made below).

However, because of the specific nature of the Immigration Judge's decision before us, including the almost complete lack of factual findings and legal analysis, the record will be remanded for further proceedings and the entry of a new decision. See Matter of Rodriguez-Carrillo, 22 I&N Dec. 1031 (BIA 1999) (discussing the importance of a full and separate decision by an Immigration Judge). Our decision to remand this case is tied to the deficiency of the decision and should not be read as indicating disagreement with the Immigration Judge's ultimate resolution of the respondents' applications for asylum. We have not addressed this latter issue on the present record.

II. THE NEW REGULATION

As noted above, the Board has had broad authority to engage in a de novo review of the record underlying an Immigration Judge's decision and make its own independent findings of fact, irrespective of those made by the Immigration Judge. See, e.g., Matter of Vilanova-Gonzalez, supra; Matter of Becerra-Miranda, 12 I&N Dec. 358, 368 (BIA 1967); see also Matter of B----, 7 I&N Dec. 1 (BIA 1955; A.G. 1956).

Under recently issued regulations, the Attorney General has specified a new scope of review to govern Board adjudications. Effective September 25, 2002, the regulations provide as follows:

(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.²

(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 (to be codified at 8 C.F.R. § 3.1(d)(3)). Therefore, effective September 25, 2002, Matter of Vilanova-Gonzalez, supra, Matter of Becerra-Miranda, supra, and any other Board precedents setting forth the Board's scope of review are superseded to the...