Saturday, July 28, 2007

Forteau (not precedential): BIA Cannot Engage In Independent Fact-Finding

In Forteau v. Gonzales, No. 07-2326 (3d Cir. July 20, 2007) (not precedential), the Third Circuit by summary action overturned the BIA for making a critical mistake -- it ignored the factual findings of the immigration judge and substituted its own fact-finding conclusions.

The big problem with the BIA doing this is that the BIA's regulations for appeals after September 2002 clearly say that the BIA cannot ignore the immigration judge's factual conclusions unless it first reviews the IJ's findings and concludes they were clearly erroneous. The only exception may be for taking notice of commonly known facts, such as current events or what are in official documents.

In this case, the IJ carefully reviewed what level of improper sexual contact happened and came to a conclusion. The BIA incorrectly ignored the IJ's findings and just made its own factual conclusions of how severe the conduct was. The Third Circuit took little time to rule that the BIA made a fatal error.


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