A-S-B

Cite as 

 (BIA 2008)                                   Interim Decision #3608




                          Matter of A-S-B-, Respondent

                                  Decided May 8, 2008

                             U.S. Department of Justice
                      Executive Office for Immigration Review
                          Board of Immigration Appeals


(1)     Under 

(d)(3) (2008), the Board of Immigration Appeals should defer
      to the factual findings of an Immigration Judge, unless they are clearly erroneous, but
      it retains independent judgment and discretion, subject to applicable governing
      standards, regarding pure questions of law and the application of a particular standard
      of law to those facts.

(2)     In determining whether established facts are sufficient to meet a legal standard, such
      as “well-founded fear,” the Board has the authority to weigh the evidence in a manner
      different from that accorded by the Immigration Judge, or to conclude that the
      foundation for the Immigration Judge’s legal conclusions was insufficient or otherwise
      not supported by the evidence of record.

FOR RESPONDENT: Christopher J. Stender, Esquire, San Francisco, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Deborah K. Goodwin, Assistant
Chief Counsel

BEFORE: Board Panel: OSUNA, Acting Chairman; HOLMES and GRANT, Board
Members.

OSUNA, Acting Chairman:


   In an order dated October 16, 2007, the United States Court of Appeals for
the Ninth Circuit granted the Government’s unopposed motion to remand the
respondent’s case to the Board. Upon review of our prior decisions pursuant
to the court’s order, we will again dismiss the respondent’s appeal.

               I. FACTUAL AND PROCEDURAL HISTORY
   The respondent is a native and citizen of Guatemala who illegally entered
the United States in 1990. On December 12, 2003, an Immigration Judge
found him removable as charged and granted him asylum. The decision fully
discusses the respondent’s claim, which we briefly summarize here. In 1989,
the respondent worked as a gas station attendant in Guatemala. One day, two
truckloads of guerrillas approached him at work and demanded free gas under

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the threat of kidnaping and forced recruitment or other consequences. The
respondent complied and the guerrillas departed. The respondent was too
scared to return to work and left for the United States the following year. The
respondent feared that upon return to Guatemala, he would be harmed by
guerrillas as a result of the 1989 incident, and by the military because he did
not report for compulsory military service when eligible in 1986. He also
feared that authorities would discover the 1989 incident and persecute him as
a suspected guerrilla or guerrilla supporter.
   The Immigration Judge found that the respondent did not establish past
persecution, or a well-founded fear of persecution, related to the guerrillas or
like forces. He did conclude, however, that the respondent would likely be
singled out for persecution by the military in Guatemala because the
authorities would question him upon his return, discover the 1989 incident, and
mistreat him as a result. The Immigration Judge considered evidence in the
record from the Department of State indicating that Guatemalan security forces
engaged in serious human rights abuses. The Department of Homeland
Security (“DHS”) filed an appeal, emphasizing the lack of objective evidence
in the record to support the Immigration Judge’s grant of asylum.
   In a decision dated November 19, 2004, we agreed with the Immigration
Judge that the respondent did not experience past persecution on account of
any protected ground. We did not, however, concur that the respondent
established a reasonable possibility that he would face persecution from the
military upon return to Guatemala. Rather, we agreed with the DHS that the
Immigration Judge’s conclusion that the authorities would discover the 1989
incident and single the respondent out for persecution on this basis was purely
speculative. We also considered the evidence of record that the Guatemalan
civil war ended in 1996, and that the politically motivated violence feared by
the respondent had abated. We pointed out that the respondent had not
provided countervailing evidence to show that his fear remained reasonable
despite these conditions. The record was remanded for the Immigration Judge
to address the respondent’s request for withholding of removal under the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,
G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“CAT”). See 

 (2004).
   On remand, the Immigration Judge, without objection from the parties,
considered the facts established at the prior hearing, as well as updated
evidence of country conditions provided by the DHS. In a decision dated
October 6, 2005, he concluded that the respondent did not meet his burden
of proof under the CAT that it was more likely than not that he would be
tortured upon return to Guatemala and granted him voluntary departure. The


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respondent filed an appeal which raised several matters, including his assertion
that in our November 19, 2004, decision, we did not review the Immigration
Judge’s findings of facts under the clearly erroneous standard of review and
that we engaged in improper fact-finding on appeal.
   We dismissed the appeal in a decision dated October 5, 2006, explaining
that we had utilized the correct standard of review in our prior decision
because we concluded, as a matter of law, that the facts of the respondent’s
case did not establish a well-founded fear of persecution within the meaning
of the Immigration and Nationality Act. Insofar as the respondent contended
that he did not have an adequate opportunity to rebut the evidence of country
conditions referred to in our decision, we responded that the pertinent
evidence, namely reports issued by the State Department, had been in the
record at the time of his hearing.1
   The respondent filed a petition for review with the Court of Appeals for the
Ninth Circuit. On October 16, 2007, the court, without any specific directives,
granted the Government’s unopposed motion to remand, which requested a
remand to
      allow the Board to provide clarification and elaboration on the scope of review it
      employed (in its November 19, 2004 decision reversing the immigration judge’s grant
      of asylum) to review the question of whether [the respondent] demonstrated a
      well-founded fear of persecution in Guatemala. Specifically, remand will allow the
      Board an opportunity to clarify and elaborate on its characterization (in its October 5,
      2006 decision) of the ultimate “well-founded fear” issue as presenting a question of
      law warranting a de novo standard of review pursuant to 

(d)(3)(ii)
      (2007).

                II. STANDARD AND SCOPE OF REVIEW
  In 2002, the Attorney General issued a procedural reforms regulation,
which, in part, related to the standard of review applied by the Board and the
scope of its review of decisions by the Immigration Judges. See Board of
Immigration Appeals: Procedural Reforms To Improve Case Management,




1
  The respondent also asserted that the Government had the burden of showing that country
conditions had changed to a degree that undermined his claim of a well-founded fear.
Although the Government carries this burden of proof when past persecution has been
established, there was no such finding in this case. See 

(b)(1)(ii) (2008);
see also Matter of D-I-M-, 

 (BIA 2008). Therefore, the burden of proof to
establish asylum eligibility rested squarely with the respondent. See 

(a).


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 (Aug. 26, 2002). The provision entitled “Scope of
review” stated the following:
         (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 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 (codified at 

(d)(3), which was transferred
to 

(d)(3) in 2003); see also Matter of S-H-, 

(BIA 2002).2
   The Supplementary Information to this regulation contained an extensive
discussion about the interplay of the clearly erroneous standard of review and
the Board’s de novo review authority.3 It explained that the Board should
defer to the factual findings of an Immigration Judge, unless they are clearly
erroneous, but that it retains independent judgment and discretion, subject to
applicable governing standards, regarding pure questions of law and the
application of a particular standard of law to those facts. 67 Fed. Reg. at
54,888-89 (Supplementary Information). The clearly erroneous standard
therefore does not apply to the application of legal standards, such as whether
the facts established by an alien “amount to ‘past persecution’ or a ‘well-
founded fear of persecution.’” Id. at 54,890. This analytical approach to
deciding cases recognizes that the Immigration Judges are better positioned to
discern credibility and assess the facts with witnesses before them, but that the
Board is better positioned to resolve issues involving the application of legal
standards and the exercise of discretion. Id.
   The Attorney General provided specific examples to show how the
standard of review should be applied. For example, the Immigration Judge’s

2
   The clearly erroneous standard of review in 

(d)(3)(i) applies to appeals
filed on or after September 25, 2002, and the remaining sections of the regulation apply to
appeals pending on that date. See Matter of S-H-, supra, at 464 n.2.
3
  Legal determinations made by the Attorney General in the Supplementary Information to
a rule are binding on the Board. See Matter of A-A-, 

 (BIA 1992);
see also 67 Fed. Reg. at 54,884 n.4 (Supplementary Information).

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assessment of what happened to an asylum applicant is a factual determination
that will be reviewed under the clearly erroneous standard. See 67 Fed. Reg.
at 54,890 (Supplementary Information). The questions whether the facts
demonstrate harm that rises to the level of persecution and whether the harm
was inflicted “on account of” a protected ground, however, “are questions that
will not be limited by the ‘clearly erroneous’ standard.” Id. In the context of
an application for cancellation of removal, the facts that a respondent alleges
to support a claim of “exceptional and extremely unusual hardship” to a
relative and to establish the status of that person as a qualifying relative are
reviewed by the Board only to determine if the Immigration Judge’s finding
was clearly erroneous. Id. After the Board has determined that the
Immigration Judge’s findings regarding the facts underlying the hardship claim
are not clearly erroneous, it may review de novo whether the facts support a
conclusion that the hardship rises to the required level. Id. Similarly, the
Board may review de novo the question whether a favorable exercise of
discretion is warranted in a given case. See Noble v. Keisler, 

 (2d
Cir. 2007) (holding that the Board has the authority to reach a different result
on discretion than that reached by the Immigration Judge).

             III. APPLICATION OF THE REGULATIONS
   In this case, the Immigration Judge found in his December 12, 2003,
decision that the respondent presented credible testimony. We did not find this
determination to be “clearly erroneous.” The predicate facts presented by the
respondent, namely what happened to him when he was in Guatemala, were
the basis for our decision when we evaluated the respondent’s case on appeal.
The question whether these uncontested facts were sufficient to establish a
well-founded fear of persecution, however, was a legal determination that
was not subject to the clearly erroneous standard of review. This mode of
evaluation is in accord with the standard for review set out in 

(d)(3) and explicated in the Supplementary Information published in
the Federal Register. This is why we characterized the well-founded fear
finding as a “matter of law” in our prior decision. See Recinos De Leon
v. Gonzales, 

 (9th Cir. 2005) (stating that on remand, the
Board may decide legal issues in the case based on the respondent’s testimony,
which was to be taken as true).
   In determining whether established facts are sufficient to meet a legal
standard, such as “well-founded fear,” the Board is entitled to weigh the
evidence in a manner different from that accorded by the Immigration Judge,
or to conclude that the foundation for the Immigration Judge’s legal
conclusions was insufficient or otherwise not supported by the evidence of
record. In this vein, we found in our November 19, 2004, decision that the

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Immigration Judge’s legal conclusion that the respondent established a
well-founded fear was not supported by the facts of record. Rather, the
Immigration Judge rested his conclusion on speculative findings about what
may or may not occur to the respondent in the future. This is not fact-finding,
because, among other reasons, it is impossible to declare as “fact” things that
have not yet occurred. Cf. Huang v. U.S. INS, 

 (2d Cir.
2005) (finding that in the absence of solid support in the record for the alien’s
assertion that he will be subject to persecutory action upon return to his native
country, his fear is speculative at best); see also Matter of J-F-F-, 

 (A.G. 2006) (finding that a CAT claim cannot be granted by stringing
together a series of suppositions). We therefore conclude that we acted within
our authority in determining that the Immigration Judge’s finding of a
well-founded fear was not supported by the record and that the respondent did
not meet his burden of proof to satisfy the legal requirements for asylum.
   We further find that neither of our prior decisions in this case violated
the prohibition against fact-finding on appeal, as set out in 

(d)(3)(iv). We relied on the predicate facts found by the Immigration
Judge and did not evaluate any “new” evidence submitted on appeal. The
State Department information discussed in our November 19, 2004, decision
regarding the end of the civil war in Guatemala had been admitted into
evidence at the hearing without objection by the respondent. The Immigration
Judge’s failure to explicitly discuss the end of the civil war and related issues
in his decision did not render our mention of them to be improper fact-finding
on appeal, especially considering that the end of the war is an uncontested
event.4 Were we to treat the matter otherwise, we would be precluded
from considering the total content of any documentary evidence submitted
before the Immigration Judge unless the entire document was read into the
Immigration Judge’s decision. We find no indication that this was the
Attorney General’s intention when the procedural reforms regulations were
promulgated. See Rotinsulu v. Mukasey, 

 (1st Cir. 2008)
(finding that 

(d)(3)(iv) was not intended to restrict the
Board’s power to weigh and evaluate evidence already presented before the
Immigration Judge).




4
  We also properly found that the portions of the State Department report discussing the end
of the civil war were more persuasive in relation to the respondent’s claim than those
concerning general human rights violations, on which the Immigration Judge focused in
finding that the respondent met his burden of proof for asylum.


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                             IV. CONCLUSION
   In conclusion, for the reasons stated in our prior decisions in this case, we
find that the respondent did not establish as a matter of law that he should be
granted asylum or withholding of removal under either the Act or the CAT.
Accordingly, upon clarification of our prior decisions, the respondent’s appeal
will again be dismissed.
   ORDER: The appeal is dismissed.
   FURTHER ORDER: Pursuant to the Immigration Judge’s order and
conditioned upon compliance with conditions set forth by the Immigration
Judge and the statute, the alien is permitted to voluntarily depart from the
United States, without expense to the Government, within 60 days from the
date of this order or any extension beyond that time as may be granted by the
Department of Homeland Security (DHS). See section 240B(b) of the
Immigration and Nationality Act; 

(c), (f). In the event the
alien fails to so depart, the alien shall be removed as provided in the
Immigration Judge’s order.
   NOTICE: If the alien fails to depart the United States within the time
period specified, or any extensions granted by the DHS, the alien shall be
subject to a civil penalty of not less than $1,000 and not more than $5,000, and
shall be ineligible for a period of 10 years for any further relief under section
240B and sections 240A, 245, 248, and 249 of the Immigration and Nationality
Act. See section 240B(d) of the Act.




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