Kabba v. Mukasey (10th Cir. 7/2/08)

LUCERO, Profilio, Brorby

The 10th Cir looked behind the BIA's stated review standard (using de novo review) to determine whether the Board had erroneously reversed the IJ by applying a lower standard than the "clear error" standard required by the regs.  The 10th Cir found that where there are two permissible readings of the evidence, there cannot be clear error - and found that the IJ's finding of credibility was permissible.

Read decision here: 

Facts: this was a Somali asylum case, where the IJ found him credible despite some minor inconsistencies (partially caused by a translator) and some gaps in the asylum application. 

1.  CtApp refused to "take the BIA at its word" - applied de novo review to determine whether Board applied the proper "clearly erroneous" standard.

   It is surely uncontroversial that “when a lower court’s factual findings are premised on improper legal standards or on proper ones improperly applied, they are not entitled to the protection of [a lesser standard of review] but are subject to de novo review.” In re Kretzinger, 103 F.3d 943, 946 (10th Cir. 1996) (quotation omitted); see also Brue v. Gonzales, 464 F.3d 1227, 1232 (10th Cir. 2006) (discussing de novo review of legal issues). The only real question, then, is whether we take the BIA at its word when it claims that it reviewed only for clear error, or instead look at its actual mode of analysis in rejecting the IJ’s credibility determinations. We think that under these rare circumstances— where an IJ makes factual credibility determinations which the BIA in turn rejects—Kabba is correct that we must consider de novo whether the BIA, in making its own factual findings, actually reviewed the IJ’s decision only for clear error. Common sense as well as the weight of authority requires that we determine whether the BIA applied the correct legal standard, not simply whether it stated the correct legal standard. See, e.g., Ramirez-Peyro v. Gonzales, 477 F.3d 637, 641 (8th Cir. 2007) (holding that “[a]lthough the Board set forth the appropriate standard of review at the outset of its decision in this case,” whether the BIA properly applied that standard was a question of law); Chen v. Bureau of Citizenship & Immigration Servs., 470 F.3d 509, 513-14 (2d Cir. 2006) (finding legal error when “[a]lthough the BIA cited the proper legal standard at the outset of its decision, it failed to apply this deferential standard of review when evaluating the IJ’s credibility finding”).

2.  Board did not review for clear error - under clear error review, where there are two permissible choices, it cannot be clear error.

   Our review of the record reveals that, as a purely legal matter, the BIA’s rigorous review of the IJ’s credibility findings, and its ultimate reversal, exceeded the bounds of clear error review. This is a case where “there are two permissible views of the evidence,” and under such circumstances, “the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574.

* * *

   As we see it, when rejecting the IJ’s credibility findings under a review purportedly targeted only at clear error, the BIA cannot selectively examine some evidence while ignoring other evidence presented to it. Based on our independent review of the record, we think it plain that the BIA substituted its own judgment for that of the IJ and that it did not defer to the IJ’s findings. * * *

   Accordingly, we conclude that although the BIA stated that it was reviewing for clear error, it failed to give deference to the IJ’s findings and improperly engaged in its own fact finding. By substituting its own judgment for that of the IJ, the BIA impermissibly engaged in de novo review contrary to § 1003.1(d)(3)(i). See Chen, 470 F.3d at 514-15.

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.