Friday, September 12, 2008

Yulianti (not precedential): BIA Cannot Overturn Fact Findings With One-Member Decision

Yulianti v. Mukasey
No. 07-4807
Sept. 12, 2008
Not Precedential

Judge Sloviter, Stapleton, and Cowen

Per Curiam

If the BIA has a disagreement with how the IJ interpreted the facts, the BIA can only overturn the decision by a three-member panel. The BIA must follow its regulations on this point. If it does not (and it did not in this and some other cases), the Third Circuit will overturn the decision to force the BIA to follow its regulations.

Here, IJ Charles Honeyman granted asylum after finding that the immigrant had a well-founded fear of future persecution. The BIA at times has only a single member (not a three-member panel) issue decisions. In this case, a single member overturned the IJ -- but wait, the regulations do not allow a one-member decision to overturn an IJ by disagreeing with the IJ's assessment of country conditions or factual issues.

The BIA broke the rules by doing so in this case. The Third Circuit noted that it already addressed this type of mistake before and overturned the BIA. Good thing Congress has not gotten rid of federal court review of BIA decisions!

For the immigrant was Joseph C. Hohenstein of ORlow, Kaplan & Hohenstein in Philadelphia.  For the government was Nancy E. Friedman of OIL in the Justice Department.

Update: on November 5, 2008, the three-judge panel granted the request by each side for rehearing by the panel. In an unpublished decision on November 17, 2008, the Third Circuit denied the petition for review, noting in a footnote that the BIA actually used a three-member panel to issue its decision, not a single-member panel. The confusion was: (1) it was a three-member ruling that was simply re-issued in a one-member decision and (2) the parties litigating the case did not explain this to the Third Circuit initially.


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