Oei (not precedential): BIA Improperly Overturned IJ's Factual Findings Without Stating It Was Clearly Erroneous

Oei v. Mukasey
No. 07-4561
Not Precedential
http://www.ca3.uscourts.gov/opinarch/074561np.pdf
December 1, 2008

For Ms. Oei, James M. Tyler of Schubert, Bellwoar, Cahill & Quinn in Philadelphia. For the government, Virginia M. Lum and Brooke M. Maurer of OIL.

Per curiam decision before Judge McKee, Nygaard, and Roth.

IJ William Van Wyke denied Ms. Oei's asylum claim and held that Ms. Oei filed the application in an untimely manner due to the one-year rule that normally requires asylum applications to be filed within one year of the most recent arrival to the United States.

Before 2002, the BIA could engage in independent fact-finding. But for appeals filed after September 25, 2002, the BIA must defer to the IJ's factual findings unless they are clearly erroneous. The BIA may not engage in its own independent factfinding. Filja v. Gonzales, 447 F.3d 241, 253 (3d Cir. 2006). The BIA ignored the rules and simply replaced the IJ's factual findings with its own without any analysis of whether the IJ's findings were clearly erroneous.

The BIA did not use the correct legal rule in its analysis.